By: Ashley N. Nelson-Raut, Associate Editor
The Court of Appeals of Maryland held that advisory only jury instructions are not harmless error and the Unger v. State precedent should be applied retroactively. State v. Waine, 444 Md. 692, 122 A.3d 294 (2015). In addition, the court held that a defendant’s motion to reopen his or her post-conviction case after the Unger decision met the “interests of justice” standard required for reconsideration of the constitutionality of the defendant’s conviction. Id. at 695, 122 A.3d at 294.
In 1976, Peter Sutro Waine (“Waine”) was tried before a jury in the Circuit Court for Harford County for first-degree murder and larceny. The presiding judge gave jury instructions stating, “you are judges, judges of the facts and the law,” and instructed that anything he stated regarding the law was advisory only. Defense counsel did not object to the advisory only jury instructions. The jury found Waine guilty of first-degree murder and larceny. Subsequently, the judge sentenced Waine to two consecutive life sentences in prison for first- degree murder, and an additional fourteen years in prison for larceny. In 1977, Waine, acting pro se, appealed to the Court of Special Appeals of Maryland, which affirmed the trial court’s decision.
In 1997, Waine sought post-conviction relief based upon ineffective assistance of counsel and claimed that the presiding judge erred in giving advisory only jury instructions. Waine, 444 Md. at 698, 122 A.3d at 297. The post-conviction court denied Waine’s appeal. Id. In 2007, Waine filed a motion to reopen his petition for post conviction relief. Id. Waine’s claim was dormant until 2012, when the Circuit Court for Harford County reopened his motion based on the Unger decision. Id. at 698-99, 122 A.3d at 297-98. After a hearing, Waine was granted post-conviction relief. Id. The court of special appeals denied the State’s application for leave to appeal, so the State petitioned for a writ of certiorari, which was granted. Id.
The Court of Appeals of Maryland first considered whether the Unger holding, that advisory only jury instructions are not harmless error, should be overruled because the holding did not conform to stare decisis. Waine, 444 Md. at 699, 122 A.3d at 298. The court recognized two exceptions for when a court may depart from stare decisis. Id. at 700, 122 A.3d at 298. First, a court may depart from stare decisis when an extensive amount of time has passed, rendering the prior decision archaic and inapplicable. Waine, 444 Md. at 699, 122 A.3d at 298 (citing of Columbia, 432 Md. 679, 689, 69 A.3d 1149 (2013)). Second, a court may depart from stare decisis if the holding is clearly wrong. Waine, 444 Md. at 701, 122 A.3d at 299, (citing DRD Pool Serv., Inc. v. Freed, 416 Md. 46, 64, 5 A.3d 45 (2010)).Coleman v. Soccer Ass’n.
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