State of Maryland v. Peter Sutro Waine, No. 90, September Term, 2014 

COURTS – STARE DECISIS – UNGER V. STATE, 427 MD. 383 (2012) – The Court 

may decline to follow precedent when the prior decision is clearly wrong, or when the 

precedent has been rendered “archaic or inapplicable to modern society through the 

passage of time and evolving events.” The decision in Unger v. State, 427 Md. 383 (2012), 

is neither clearly wrong nor “archaic” in holding that this Court’s prior decisions regarding 

the interpretation of Article 23 advisory only jury instructions created a new State 

constitutional standard that applies retroactively to all cases in which there were advisory 

only jury instructions. 

CRIMINAL LAW – POSTCONVICTION – DISCRETION TO REOPEN 

POSTCONVICTION PROCEEDINGS – A court retains discretion to decide whether it 

is in the interests of justice to grant or deny a petition to reopen a postconviction 

proceeding. A change in the law intended to apply retroactively meets the “interests of 

justice” standard for reopening a petition for postconviction relief. Accordingly, after this 

Court’s decision in Unger v. State, 427 Md. 383 (2012), the circuit court in the present case 

did not abuse its discretion to reopen the case to relitigate the constitutionality of a 

conviction based on a guilty verdict by a jury that was given an advisory only instruction. 

CRIMINAL LAW – POSTCONVICTION – WAIVER – FAILURE TO OBJECT TO 

ADVISORY ONLY JURY INSTRUCTIONS WILL NOT CONSTITUTE WAIVER 

– Respondent’s failure to object at trial to the trial judge’s advisory only jury instructions 

did not preclude Respondent from asserting that claim in a postconviction proceeding. 

Convicted persons tried during the era of the advisory only jury instruction will not be 

precluded from seeking postconviction relief on the basis of waiver. 

CRIMINAL LAW – POSTCONVICTION – CHALLENGE TO ADVISORY ONLY 

JURY INSTRUCTION – Advisory only jury instructions were not ambiguous, but rather, 

obviously erroneous, and thus, the “reasonable likelihood” test is not the proper framework 

to challenge advisory only jury instructions. The advisory only jury instructions permitted 

the jury to disregard bedrock due process instructions on the presumption of innocence, 

burden of proof, and reasonable doubt, constituting structural error not subject to harmless 

error analysis. 
Circuit Court for Harford County 

Case No. 12-K-75-005312 

Argued: May 12, 2015 

IN THE COURT OF APPEALS

OF MARYLAND 

No. 90 

September Term, 2014 

STATE OF MARYLAND 

v. 

PETER SUTRO WAINE 

 Barbera, C.J., 

*Harrell

 Battaglia 

Greene

Adkins

McDonald

Watts, 

 JJ. 

Filed: August 28, 2015 

Opinion by Barbera, C.J.

Harrell and Adkins, JJ., join in judgment only. 

Watts, J. dissents. 

*Harrell, J., now retired, participated in the 

hearing and conference of the case while an 

active member of this Court; after being recalled 

pursuant to the Constitution, Article IV, Section 

3A, he also participated in the decision and 

adoption of this opinion. 
In May 2012, we decided Unger v. State, 427 Md. 383 (2012), and denied a motion 

to reconsider our decision in August of the same year. We granted certiorari to consider 

the State’s request that we overrule what we decided in Unger little more than three years 

ago. We decline to overrule Unger and return to what once was the law. To hold otherwise 

would depart from the principles of stare decisis, generate uncertainty, and, ultimately, 

undermine trust and confidence in the rule of law.

I.

In order to appreciate the legal issues and arguments of the parties, it is useful at the 

outset to understand what this Court held in Unger. Unger followed a series of cases, 

Stevenson v. State, 289 Md. 167 (1980), Montgomery v. State, 292 Md. 84 (1981), and 

State v. Adams, 406 Md. 240 (2008), all of which involved the “advisory only” jury 

instruction prompted by Article 23 of the Maryland Declaration of Rights. Article 23 reads: 

“In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, 

except that the Court may pass upon the sufficiency of the evidence to sustain a 

conviction.” This Court promulgated Maryland Rule 756b to implement Article 23.1

 The 

Rule required judges, “in every case in which instructions are given to the jury, [to] instruct 

the jury that they are the judges of the law and that the court’s instructions are advisory 

only.” 

 

1

 Maryland Rule 756b was promulgated in 1961. Earlier versions of this Rule were similar 

in substance but were numbered differently. See infra n.3 (explaining, in more detail, the 

renumbering and restructuring of this Rule). 
2

In 1980, this Court considered whether Article 23, as interpreted by prior decisions, 

ran afoul of the guarantees afforded State criminal defendants by the Due Process Clause 

of the Fourteenth Amendment to the United States Constitution. The Court in Stevenson

construed Article 23 to mean that only those instructions concerning “disputes as to the 

substantive ‘law of the crime’” are advisory; all other instructions to the jury are binding. 

289 Md. at 180. The next year, in Montgomery, the Court reinforced its Stevenson

interpretation of Article 23, emphasizing that advisory only instructions are “limited to 

those instances when the jury is the final arbiter of the law of the crime.” 292 Md. at 89. 

Almost 28 years later, we decided Adams, a postconviction case. We concluded in

Adams, essentially consistent with Stevenson and Montgomery, that, under Article 23, the 

jury’s role as judge of the law in a criminal case is limited to disputes relating to the 

substantive law of the crime and “all other legal issues are for the judge alone to decide.” 

406 Md. at 256-59. Notable for present purposes, we held in Adams that the Stevenson

interpretation of Article 23, as reinforced by Montgomery, “did not announce new law.” 

Id. at 256. We further held in Adams that trial counsel’s failure to object to the advisory 

only instruction constituted a waiver of Adams’s right to challenge the instruction in the 

subsequent postconviction action. Id. at 266. 

We re-examined our holdings in Adams three and a half years later in Unger. It was 

clear to the Court that “Stevenson and Adams were wrongly decided.” Unger, 427 Md. at 

417. The Court in Unger overruled “[t]hose portions of the Court’s Stevenson, 

Montgomery, and Adams opinions, holding that the interpretation of Article 23 in 

Stevenson and Montgomery was not a new State constitutional standard.” Id. We also 
3

overruled the waiver holdings in those cases, id., determining that the “failure to object to 

advisory only jury instructions in criminal trials prior to Stevenson will not constitute a 

waiver,” id. at 391. We made those holdings fully retroactive. Id. at 416. The Unger 

decision effectively opened the door to postconviction relief for persons tried during the 

era of the advisory only jury instruction—an opportunity that had been foreclosed by 

Stevenson, Montgomery, and Adams. 

Against this backdrop, we turn to the case before us.

II. 

This case arises from the 1976 trial of Respondent, Peter Sutro Waine. Waine was 

tried before a jury in the Circuit Court for Harford County on two charges of first degree 

murder and a related larceny. At the close of all the evidence, pursuant to Rule 756b, the 

judge began his instructions to the jury with the following reference to Article 23: 

Under the Constitution and laws of the State, the jury in a criminal case is 

the judge of both the law and the facts and anything that I say to you about 

the law is advisory only. It is intended to help you, but you are at liberty to 

reject the Court’s advice on the law and to arrive at your own independent 

conclusion on it, if you desire to do so. 

The judge concluded his instructions with a reiteration of his opening instruction: 

“You are not partisans. You are judges, judges of the facts and the law. Your sole interest 

is to ascertain the truth from the evidence in the case.” Waine’s counsel did not object to 

those instructions. After deliberating for less than three hours, the jury returned guilty 

verdicts on all counts. The judge imposed consecutive life sentences on the two murder 

convictions and an additional 14 years, consecutive to the second life sentence, on the 

larceny conviction. 
4

Waine noted an appeal to the Court of Special Appeals, which, in 1977, affirmed 

the judgment. Waine v. State, 37 Md. App. 222, 247 (1977). Waine, representing himself, 

made initial efforts to seek certiorari review and postconviction relief but, in the end, did 

not file the petitions. 

In 1997, Waine, assisted by counsel, sought postconviction relief for the first time. 

Waine claimed ineffective assistance of counsel at both the trial and appellate levels, and 

asserted, among 19 other claims, that the trial judge erred when he gave the advisory only 

jury instructions. The postconviction court, in denying relief, rejected Waine’s claim that 

the erroneous jury instructions contravened fundamental constitutional rights and ruled that 

this claim was waived by trial counsel’s failure to object to the jury instructions during 

trial. The Court of Special Appeals denied Waine’s application for leave to appeal the 

denial of postconviction relief.

In September 2007, counsel for Waine filed a motion to reopen the petition for 

postconviction relief, relying in part on Jenkins v. Hutchinson, 221 F.3d 679 (4th Cir. 

2000). Jenkins had sought federal habeas corpus relief from his 1975 Maryland conviction. 

Id. at 681. He argued that the advisory only jury instruction given at trial violated his right 

to due process by allowing the jury to disregard the State’s burden to prove his guilt beyond 

reasonable doubt. The United States Court of Appeals for the Fourth Circuit agreed with 

Jenkins.

2

 The Jenkins court recognized the legal question as “whether the jury was 

 

2 The Fourth Circuit determined that, because the state court had addressed Jenkins’s claim 

on the merits, the claim was not defaulted, and federal review was not precluded. Jenkins, 

221 F.3d at 682-83. 
5

effectively given any reasonable doubt instruction at all; for if the jury understood the 

advisory nature of the instructions as permitting it to ignore the reasonable doubt 

instruction, then the jury could fashion any standard of proof that it liked.” Id. The court 

noted that, after In re Winship, 397 U.S. 358 (1970), it was no longer an “open question” 

that “the jury must be instructed that the Government is required to prove the defendant’s 

guilt ‘beyond a reasonable doubt[.]’” Jenkins, 221 F.3d at 684. The Jenkins court held, by 

application of Winship, that Maryland’s advisory only jury instruction violates due process. 

Waine’s motion to reopen his postconviction proceeding lay dormant until 2012, 

when the circuit court, citing our recently filed opinion in Unger, granted the motion. The 

court found, based on Unger, that “it would be in the interest of justice to allow a reopening 

of the Petitioner’s postconviction application in this court . . . on only one issue—the 

alleged erroneous jury instruction advising the jury that they were the judges of the law 

and the facts.”

Following a hearing, the postconviction court issued a memorandum opinion 

granting Waine postconviction relief. The court rejected the State’s claim of waiver as 

having been “foreclosed by Unger.” The court also rejected the State’s contention that 

Waine was not prejudiced by the advisory only instruction because of other instructions to 

the jury. The court concluded that the advisory only instruction went “to the very core of 

due process of law” and, based on the full retroactivity conferred by Unger, ordered that 

Waine was entitled to a new trial. 

The Court of Special Appeals denied the State’s application for leave to appeal in 

an unreported opinion addressing the merits of the postconviction court’s grant of relief 
6

under Unger. We granted the State’s certiorari petition to answer three questions, which 

we have reworded: 

1. Should Unger be overruled? 

2. Assuming Unger is not overruled, did the circuit court exercise proper 

discretion in reopening Waine’s postconviction proceeding, and more 

generally, does a circuit court retain discretion to deny reopening a 

postconviction proceeding to address a challenge to an advisory jury 

instruction?

3. Assuming Unger is not overruled, what is the proper standard by which 

a court should evaluate advisory only jury instructions?

III. 

The State urges us to overrule Unger, arguing that, in deciding Unger, we departed 

from stare decisis in an unprecedented and improper manner. The State protests that the 

decision has left circuit courts across Maryland “in turmoil” and has resulted in “chaotic” 

litigation. The State asks us to calm these unsettled waters by resurrecting Adams. Waine 

and amici in support of him and persons similarly situated urge us not to disturb Unger as 

the case declares the current state of the law and should remain intact, as faithful adherence 

to the doctrine of stare decisis demands.

“Stare decisis means ‘to stand by the thing decided,’ and is ‘the preferred course 

because it promotes the evenhanded, predictable, and consistent development of legal 

principles, fosters reliance on judicial decisions, and contributes to the actual and perceived 

integrity of the judicial process.’” Livesay v. Balt. Cnty., 384 Md. 1, 14 (2004) (quoting 

Payne v. Tennessee, 501 U.S. 808, 827 (1991)); accord State v. Stachowski, 440 Md. 504, 

520 (2014). In Stachowski, we reiterated: “The crux of the doctrine of stare decisis is that 
7

courts should reaffirm, follow, and apply ordinarily the published decisional holdings of 

our appellate courts even though, if afforded a blank slate, the court might decide the matter 

differently.” 440 Md. at 520 (citing Coleman v. Soccer Ass’n of Columbia, 432 Md. 679, 

689 (2013)). 

We have recognized two exceptions for departing from stare decisis. “We may 

decline to follow the doctrine when persuaded the prior decision is clearly wrong, or when 

the precedent has been rendered archaic and inapplicable to modern society through the 

passage of time and evolving events.” Id. (citation omitted); see also Unger, 427 Md. at 

417 (“[U]nder the doctrine of stare decisis, a court’s previous decisions should not be 

lightly set aside, nevertheless the rule of stare decisis is not an absolute.”) (internal 

quotation marks omitted). 

 The State insists that Unger deviated from the doctrine of stare decisis and that a 

return to Adams, decided three and a half years earlier, is required. To the contrary, it is 

Unger, not Adams, to which the dictates of stare decisis must now apply. Unless we are 

persuaded that Unger is either “clearly wrong and contrary to established principles” or 

“superseded by significant changes in the law,” we must leave the decision standing. DRD 

Pool Serv., Inc. v. Freed, 416 Md. 46, 64 (2010) (internal quotation marks omitted). The 

State has not persuaded us that either of these exceptions applies. 

The State makes no argument that Unger is archaic, superseded by a significant 

change in the law, or rendered inapplicable to modern society by the passage of time. The 

State concentrates solely on arguing that the decision was clearly wrong and contrary to 

established principles. The State argues that the Unger Court wrongly held that Stevenson
8

set forth a new interpretation of Article 23. The State picks its way carefully around the 

analysis in both Stevenson and Unger to paint a picture of clear error, but neglects to 

include the full bore of the Court’s analysis for determining that a new constitutional rule 

had been laid in Stevenson. 

The Unger Court, in reaching the legal conclusions that it did, applied the very 

principles of, and exceptions to, the doctrine of stare decisis that the State relies upon in 

seeking a return to the holdings of the Stevenson, Montgomery, and Adams cases. In Unger,

this Court analyzed the law existing at the time of Stevenson, including Maryland Rule 

756b3

requiring courts to give the advisory only jury instruction. See Unger, 427 Md. at 

411-16. We have reviewed independently the Unger Court’s extensive analysis and need 

 

3 Maryland implemented Article 23 through Rule 756b: 

The court may and at the request of any party shall, give such advisory 

instructions to the jury as may correctly state the applicable law; the court 

may give its instructions either orally or in writing. The court need not grant 

any requested instruction if the matter is fairly covered by the instructions 

actually given. The court shall in every case in which instructions are given 

to the jury, instruct the jury that they are the judges of the law and the court’s 

instructions are advisory only. 

Md. Rule 756b (emphasis added). In 1977, the Rule implementing Article 23 was revised 

and renumbered as 757b, yet the substantive language did not change: 

The court may, and at the request of any party shall, give those advisory 

instructions to the jury as correctly state the applicable law. The court may 

give its instructions orally or, with the consent of the parties, in writing. The 

court need not grant any requested instruction if the matter is fairly covered 

by the instructions actually given. In every case in which instructions are 

given to the jury the court shall instruct the jury that they are the judges of 

the law and that the court’s instructions are advisory only. 

Md. Rule 757b (emphasis added). In 1984, this was Rule was revised and 

restructured as Rule 4-325. When Rule 4-325 was promulgated, the advisory only 

jury instruction was omitted. 
9

not repeat it here. It is enough to say that the Court was not wrong, much less clearly 

wrong, in determining that Stevenson and Montgomery established a new State 

constitutional standard that could not be considered waived, requiring the overruling of 

Adams and the portions of Stevenson and Montgomery that held to the contrary. 

The State is in the unfortunate position of decrying the “ping-pong” between the 

Court’s holding in Adams and Unger, decided three and a half years apart, and seeking just 

one more “ping” by urging that Unger be overruled and Adams resurrected. We must 

decline. Where the Court has previously recognized a new State constitutional standard as 

fundamental to due process, deference to that precedent ensures the constancy upon which 

due process endures. 

IV. 

We turn next to the State’s contention that the circuit court erred by granting 

Waine’s motion to reopen his petition for postconviction relief to entertain his Unger claim. 

The State argues that the court’s rationale for granting the petition demonstrates the court’s 

failure to recognize that it had the discretion to deny reopening. We disagree. 

The circuit court’s written statement of reasons for reopening the postconviction 

proceeding to hear the Unger claim demonstrates that the court both recognized that the 

decision to reopen is discretionary and properly exercised that discretion. It is evident that 

the court had carefully reviewed the record and relevant case law, including Gray v. State, 

388 Md. 366 (2005), and Unger; understood that Unger has retrospective application to 

specific advisory only instructions; appreciated that the claim of error reached “to the very 
10 

core of due process of law”; and concluded that reopening the proceeding to consider that 

claim for relief would be in the interests of justice. 

The State also argues that, should we decline to overrule Unger, as we have done, 

we should consider whether judges retain discretion to deny motions to reopen 

postconviction proceedings after Unger. We recognized in Gray that a change in the law 

intended to apply retroactively meets the “interests of justice” standard for reopening a 

petition for postconviction relief. 388 Md. at 382-83. This is both independent of and 

consistent with Section 7-106(c)(2) of the Criminal Procedure Article: 

Notwithstanding any other provision of this title, an allegation of error may 

not be considered to have been finally litigated or waived under this title if a 

court whose decisions are binding on the lower courts of the State holds that: 

(i) the Constitution of the United States or the Maryland Constitution 

imposes on State criminal proceedings a procedural or substantive 

standard not previously recognized; and

(ii) the standard is intended to be applied retrospectively and would 

thereby affect the validity of the petitioner's conviction or sentence. 

Md. Code Ann., Crim. Proc. § 7-106(c)(2) (2001, Repl. Vol. 2008). Given the nature of 

this claim and others like it, the legal landscape that prevailed at the time of Waine’s trial, 

and the case law that developed in the decades between Stevenson and Unger suggesting 

the likelihood that an unobjected to jury instruction would be considered waived, it can 

hardly be said that reopening a postconviction proceeding to consider an Unger claim 

would be an abuse of discretion. 

V. 

Finally, the State asks us to consider what test a court must apply in considering a 

challenge to an advisory only jury instruction. Rather than adopting the standard set forth 
11 

in Unger, the State urges that advisory only instructions be considered on a case by case 

basis to determine whether there is a “reasonable likelihood” that the jurors understood the 

court’s Article 23 instruction as allowing them to convict a defendant on less than proof 

beyond a reasonable doubt. The State’s reliance on the “reasonable likelihood” test is 

misplaced, as this was the test adopted by the Supreme Court for review of jury instructions 

that are ambiguous. Estelle v. McGuire, 502 U.S. 62, 72 (1991) (“[I]n reviewing an 

ambiguous instruction such as the one at issue here, we inquire ‘whether there is a 

reasonable likelihood that the jury has applied the challenged instruction in a way’ that 

violates the Constitution.” (quoting Boyde v. California, 494 U.S. 370, 380 (1990))); see 

also Victor v. Nebraska, 511 U.S. 1, 6 (1994). 

Ambiguity is not the issue in Article 23 advisory only jury instructions; rather, such 

instructions are clear, but erroneous, as they give the jury permission to disregard any or 

all of the court’s instructions, including those bedrock due process instructions on the 

presumption of innocence and the State’s burden of proving the defendant’s guilt beyond 

a reasonable doubt. See Unger, 427 Md. at 389, 409. This is illustrated by Sullivan v. 

Louisiana: 

But the essential connection to a “beyond a reasonable doubt” factual finding 

cannot be made where the instructional error consists of a misdescription of 

the burden of proof, which vitiates all the jury’s findings. A reviewing court 

can only engage in pure speculation—its view of what a reasonable jury 

would have done. And when it does that, the wrong entity judge[s] the 

defendant guilty. 

Another mode of analysis leads to the same conclusion that harmless-error 

analysis does not apply: In Fulminante, we distinguished between, on the 

one hand, structural defects in the constitution of the trial mechanism, which 

defy analysis by harmless-error standards, and, on the other hand, trial errors 
12 

which occur during the presentation of the case to the jury, and which may 

therefore be quantitatively assessed in the context of other evidence 

presented. Denial of the right to a jury verdict of guilt beyond a reasonable 

doubt is certainly an error of the former sort, the jury guarantee being a basic 

protectio[n] whose precise effects are unmeasurable, but without which a 

criminal trial cannot reliably serve its function. The right to trial by jury 

reflects, we have said, a profound judgment about the way in which law 

should be enforced and justice administered. The deprivation of that right, 

with consequences that are necessarily unquantifiable and indeterminate, 

unquestionably qualifies as “structural error.”

508 U.S. 275, 281-82 (1993) (alteration in original) (internal quotation marks and citations 

omitted) (citing Arizona v. Fulminante, 499 U.S. 279, 307-09 (1991)). 

The rationale underpinning Sullivan applies equally to advisory only jury 

instructions. We therefore hold that the trial court’s giving the advisory only jury 

instruction was structural error not susceptible to harmless error analysis and that the 

conviction must be vacated. 

VI. 

In sum, we uphold Unger as the law regarding advisory only jury instructions. The 

postconviction court properly granted Waine relief in the form of a new trial. The Court 

of Special Appeals affirmed that ruling. We, in turn, affirm the judgment of the Court of 

Special Appeals.

JUDGMENT OF THE COURT OF 

SPECIAL APPEALS AFFIRMED. COSTS 

IN THIS COURT AND THE COURT OF 

SPECIAL APPEALS TO BE PAID BY

HARFORD COUNTY. 
Judges Harrell and Adkins join the judgment only. Judge Harrell writes separately 

as follows, to which sentiments Judge Adkins subscribes. 

 I feel a little like Jabez Stone.1

 Judge Watts’s dissenting opinion in this case is quite 

tempting, given my dissent in Unger v. State, 427 Md. 383, 418–40, 48 A.3d 242, 262–76

(2012); however, more compelling here is my respect for the doctrine of stare decisis.2 One 

could say (and the irony is not lost on me) that I am hoisting myself on my own petard. 

Nonetheless, I will not require the services of Daniel Webster to fight for my soul. 

I can articulate no changes in society between 2012 and now that would justify not 

honoring the stare decisis effect of Unger in Waine’s case. Similarly, no new 

jurisprudential principles or statutory changes have arisen during that time which would 

justify labeling Unger “clearly wrong, contrary to established principles, or superseded by 

significant changes in the law.” To be certain, Unger was decided wrongly, but I cannot 

label it “clearly wrong.”

 By the same token, I do not subscribe to the overly reverential tone in the Majority 

opinion here of Unger. For example, the Majority opinion states, “[t]he Unger Court, in 

 

1

 The New Hampshire farmer tempted by (and succumbing to) Mr. Scratch’s 

blandishments in Stephen Vincent Benet’s short story “The Devil and Daniel Webster” 

(1937).

2

 Had the Majority in Unger paid more than lip service to stare decisis, State v. 

Adams, 406 Md. 240, 958 A.2d 295 (2008), would not have been reversed and would still 

be the law of Maryland. I agree with Judge Watts’s surmise that the different outcome in 

Unger on the identical question decided in Adams had all to do with the changes in who 

sat on the Court in 2012 than in 2008, and little to nothing to do with any intervening sea 

change in the modernity of society or the creation of new jurisprudential reasons from 

which Adams could be said (with any legitimacy) to have been “clearly wrong.” 
2

reaching the legal conclusions that it did, applied the very principles of, and exceptions to, 

the doctrine of stare decisis . . . .” Maj. Slip Op. at 8. To this, I respond, “Seriously???” –

see my dissent in Unger, 427 Md. at 430–33, 48 A.3d at 269–71. 

For these reasons, Judge Adkins and I do not join the Majority opinion, but join the 

judgment only. 
IN THE COURT OF APPEALS

OF MARYLAND 

No. 90 

September Term, 2014 

______________________________________ 

STATE OF MARYLAND 

v. 

PETER SUTRO WAINE 

______________________________________ 

Barbera, C.J. 

*Harrell

Battaglia 

Greene

Adkins

McDonald

Watts, 

JJ.

______________________________________ 

Dissenting Opinion by Watts, J. 

______________________________________ 

Filed: August 28, 2015 

*Harrell, J., now retired, participated in 

the hearing and conference of the case 

while an active member of this Court; 

after being recalled pursuant to the 

Constitution, Article IV, Section 3A, he 

also participated in the decision and 

adoption of this opinion. 

Circuit Court for Harford County

Case No. 12-K-75005312

Argued: May 12, 2015 
Respectfully, I dissent. “Wisdom too often never comes, and so one ought not to 

reject it merely because it comes late.” Henslee v. Union Planters Nat’l Bank & Trust Co., 

335 U.S. 595, 600 (1949) (Frankfurter, J., dissenting). I would overrule Unger v. State, 

427 Md. 383, 411, 48 A.3d 242, 258 (2012); reinstate Stevenson v. State, 289 Md. 167, 

178, 423 A.2d 558, 564 (1980), Montgomery v. State, 292 Md. 84, 87-88, 437 A.2d 654, 

656 (1981), and State v. Adams, 406 Md. 240, 256, 958 A.2d 295, 305 (2008); and hold 

that a petitioner for postconviction relief waives a challenge to “advisory” jury instructions 

by failing to raise any issue as to the “advisory” jury instructions in a prior proceeding. 

Here, we are asked to overrule Unger, 427 Md. at 411, 48 A.3d at 258, whose 

holding regarding “advisory” jury instructions casually overruled decades’ worth of wellestablished case law. At its core, this case presents the paradox that the doctrine of stare 

decisis supports overruling a case.1

 For more than three decades, Stevenson, 289 Md. at

178, 423 A.2d at 564, was the law of Maryland. The bench and bar relied on Stevenson, 

and justifiably so; this Court reaffirmed Stevenson one year after issuing it, see

Montgomery, 292 Md. at 87-88, 437 A.2d at 656, and then once again twenty-eight years 

after issuing it, see Adams, 406 Md. at 259, 958 A.2d at 307. But then, a mere four years 

after Adams, in Unger, 427 Md. at 417, 48 A.3d at 261, without valid reason, this Court 

overruled Adams and decades’ worth of other case law in which we consistently recognized 

 

1

“Under stare decisis, absent extremely narrow exceptions, an appellate court does 

not overrule its precedent. Stare decisis promotes the evenhanded, predictable, and 

consistent development of legal principles, fosters reliance on judicial decisions, and 

contributes to the actual and perceived integrity of the judicial process.” Thompson v. UBS 

Fin. Servs., Inc., 443 Md. 47, 57-58, 115 A.3d 125, 131 (2015) (citations and internal 

quotation marks omitted). 
- 2 - 

that Article 23 of the Maryland Declaration of Rights and its predecessors mean that, in a 

criminal case, the jury is the judge of the law of the crime. 

In overruling this raft of case law in Unger, this Court struck a blow to stare decisis, 

rocked lawyers’ and courts’ confidence that this Court would not lightly abandon its 

precedent, and gave members of the public reason to believe that this Court’s decisionmaking is based on the views of the individual judges who decide a case, regardless of 

existing case law. Today, this Court has the opportunity to right these wrongs, restore stare 

decisis to its proper place, and make clear that, because this Court nonchalantly demolished

decades’ worth of case law in Unger, that case represents an aberration that thwarts the 

doctrine of stare decisis. Unfortunately, the Majority fails to take advantage of this 

opportunity, and instead reaffirms Unger with barely any analysis, original thought, or 

consideration of historical context. See Maj. Slip Op. at 7-9. 

Foremost, Unger is disconcerting in light of the circumstance that this Court simply 

turned parts of the dissent in Adams, 406 Md. at 312-40, 958 A.2d at 339-56 (Eldridge, J., 

dissenting) into the majority opinion in Unger, 427 Md. at 411, 48 A.3d at 258. As the 

Honorable Glenn T. Harrell, Jr. pointed out in Unger, 427 Md. at 430 n.7, 418, 48 A.3d at 

270 n.7, 262 (Harrell, J., dissenting), “more is required, before deviating from stare decisis, 

than simply re-potting those dissenting views as a Majority opinion here”; “[t]he only thing 

that appears to have changed in the few intervening years between Adams and [Unger] is 

the composition of [this] Court.” As Judge Harrell later demonstrated, a dissenting judge 

must realize that, as of this Court’s issuance of the majority opinion from which the judge 

dissents, the judge’s views’ opposite—i.e., the majority opinion—becomes the law of 
- 3 - 

Maryland. See Dep’t of Pub. Safety & Corr. Servs. v. Doe, 439 Md. 201, 238, 94 A.3d 

791, 813 (2014) (Harrell, J., concurring) (“I did not join the reasoning . . . of the plurality 

of the judges in . . . Doe I . . . . I concur in the judgment of [this] Court’s opinion in the 

present case, assuming that Doe I was decided correctly. It is, after all, the law of 

Maryland.”). 

Under the well-established framework of stare decisis, it is readily apparent that 

Unger was clearly wrong and contrary to established principles,2

 not only because this 

Court lightly cast aside stare decisis in Unger, but also because, in Unger, this Court 

erroneously reasoned that, in Adams, 406 Md. at 256, 958 A.2d at 305, this Court was 

wrong in concluding that this Court did not “announce new law” in Stevenson or 

Montgomery.3 To adequately explain why this Court did not “announce new law” in 

 

2

“[A]n appellate court need not adhere to stare decisis where the appellate court’s 

precedent was clearly wrong and contrary to established principles.” Thompson v. UBS 

Fin. Servs., Inc., 443 Md. 47, 58 n.5, 115 A.3d 125, 131 n.5 (2015) (citation and internal

quotation marks omitted). 

3Whether this Court “announced new law” in Stevenson or Montgomery determines 

whether a petitioner for postconviction relief waives a challenge to an “advisory” jury 

instruction by failing to object to the “advisory” jury instruction in a prior proceeding. See 

Md. Code Ann., Crim. Proc. (2001, 2008 Repl. Vol.) (“CP”) § 7-106(b)(1)(i) (“[A]n 

allegation of error is waived when a petitioner could have made but intelligently and 

knowingly failed to make the allegation: 1. before trial; 2. at trial; 3. on direct appeal, 

whether or not the petitioner took an appeal; 4. in an application for leave to appeal a 

conviction based on a guilty plea; 5. in a habeas corpus or coram nobis proceeding began 

by the petitioner; 6. in a prior petition under this subtitle; or 7. in any other proceeding that 

the petitioner began.” (Paragraph breaks omitted)); CP § 7-106(c)(2) (“[A]n allegation of 

error may not be considered to have been . . . waived . . . if a court whose decisions are 

binding on the lower courts of the State holds that: (i) the Constitution of the United States 

or the Maryland Constitution imposes on State criminal proceedings a procedural or 

substantive standard not previously recognized; and (ii) the standard is intended to be 

applied retrospectively and would thereby affect the validity of the petitioner’s conviction 

or sentence.” (Emphasis added) (paragraph breaks omitted)). 
- 4 - 

Stevenson or Montgomery, a thorough analysis is needed. 

In 1776, under English common law, in a criminal case, the trial court decided the 

law, and the jury applied the law to the facts. See Slansky v. State, 192 Md. 94, 101, 63 

A.2d 599, 601 (1949). The English common law principle “was condemned by some of 

the Colonial statesmen, notably John Adams, who believed that the juries should be entitled 

to disregard the arbitrary and unjust rulings of the [trial] judges holding office by authority 

of the” King of England. Id. at 101, 63 A.2d at 601; see also id. at 101, 63 A.2d at 601-02

(“In some of the . . . Colonies[,] it was fully understood that the [trial] judges held office 

not for the purpose of deciding causes, for the jury decided all questions of both law and 

fact, but merely to preserve order and see that the parties were treated fairly before the jury. 

This procedure received patriotic justification as increasingly oppressive measures were 

taken by the royal officials; however, the fact that many of the [trial] judges had not studied 

law was probably an additional explanation for the procedure.”).

The Constitution of Maryland of 1776 did not expressly indicate whether the jury 

was the judge of the law in a criminal case. See id. at 104, 63 A.2d at 603. As a result, 

“opposing views as to the powers of [the] jury in a criminal case[] prevailed in different 

parts of” Maryland. Franklin v. State, 12 Md. 236, 245 (1858) (LeGrand, C.J., concurring). 

To secure uniformity of decision, the Constitution of Maryland of 1851 included Article 

X, Section 5 of the Maryland Declaration of Rights, which stated: “In the trial of all 

criminal cases, the jury shall be the judges of law as well as fact.” See id. (LeGrand, C.J., 

concurring) (“[T]o guard in the future against . . . conflict, the provision was inserted in the 

constitution.”). 
- 5 - 

This Court consistently recognized that Article X, Section 5 and its successors mean

that, in a criminal case, the jury is the judge of the “law of the crime;” in other words, the 

jury applies the law of the crime (e.g., the law against murder) to the facts, and cannot 

make any other legal determination (e.g., that a statute is unconstitutional). For example, 

in Franklin, id. at 249, the very first case in which this Court mentioned Article X, Section 

5, this Court stated that Article X, Section 5 did not enable the jury in a criminal case to 

conclude that a statute is unconstitutional. As to that issue, a majority of this Court adopted 

the concurring opinion of Chief Justice John Carroll LeGrand, id. at 249, who stated that, 

under Article X, Section 5, “in a criminal case[,] the jury [is] not bound to abide by the 

interpretation of the [trial] court of the meaning of a law, but [is] free to construe and 

apply it according to [the jurors’] own judgments”; in other words, instead of having “the 

right to decide on the constitutionality of an act defining murder, arson[,] or any other 

crime, [the jurors] had the right to affix their own meaning on the particular law, and to 

determine for themselves, whether the facts proven brought the [defendant] within that 

meaning[,]” id. at 246 (LeGrand, C.J., concurring) (emphasis added). 

In several cases after Franklin, this Court reaffirmed the principle that Article X, 

Section 5 and its successors: (1) mean that, in a criminal case, the jury is the judge of the 

law of the crime; and (2) do not enable the jury to make any other legal determination (e.g.,

whether a piece of evidence is admissible). See Wheeler v. State, 42 Md. 563, 570 (1875) 

(“[A]ny instruction given by the [trial c]ourt, as to the law of the crime, is but advisory, 

and in no manner binding upon the jury, except in regard to questions as to what shall be 

considered as evidence.” (Some emphasis in original)); Bloomer v. State, 48 Md. 521, 540 
- 6 - 

(1878) (“[I]t was the duty of the [trial c]ourt to leave it to the jury to say[] whether the 

evidence was sufficient in law and in fact to prove the [crime] charged.” (Emphasis 

added)); Beard v. State, 71 Md. 275, 280, 17 A. 1044, 1045 (1889) (“The [trial court] . . . 

cannot, by any instruction given in a criminal case, bind the jury as to the definition of the 

crime, or as to the legal effect of the evidence before them.” (Emphasis added)); Ridgely 

v. State, 75 Md. 510, 513, 23 A. 1099, 1100-01 (1892) (same) (quoting Beard, 71 Md. at 

280, 17 A. at 1045); Dick v. State, 107 Md. 11, 17, 68 A. 286, 288 (1907) (“[T]he jury in 

criminal cases are the judges of the law, and of the legal effect and legal sufficiency of 

the evidence, and the [trial] court . . . determines [only] the admissibility of the evidence.” 

(Emphasis added)); Jessup v. State, 117 Md. 119, 123, 83 A. 140, 142 (1912) (same) 

(quoting Dick, 107 Md. at 17, 68 A. at 288); Vogel v. State, 163 Md. 267, 274, 162 A. 705, 

707-08 (1932) (“The statement in Dick[, 107 Md. at 17, 68 A. at 288], and Beard[,71 Md. 

at 280, 17 A. at 1045], that the [trial] court could not bind the jury as to the ‘legal effect of 

the evidence,’ referred to the effect, in law, of admitted evidence upon the issue of guilt 

or innocence[.]” (Emphasis and italics added)); Dillon v. State, 277 Md. 571, 581-82, 357 

A.2d 360, 367 (1976) (Article X, Section 5 and its successors “‘contemplate[] that it is 

within the proper province of the jury to resolve conflicting interpretations of the law and 

to decide whether the law should be applied in dubious factual situations,’ but ‘it does 

not confer upon them . . . untrammeled discretion to enact new law or to repeal or 

ignore clearly existing law as whim, fancy, compassion or malevolence should dictate, 

even within the limited confines of a single criminal case.” (Quoting Hamilton v. State, 12 

Md. App. 91, 98, 277 A.2d 460, 464 (1971) (Moylan, J.), aff’d, 265 Md. 256, 288 A.2d 
- 7 - 

885 (1972)) (emphasis added) (parentheses and internal quotation marks omitted)); 

Blackwell v. State, 278 Md. 466, 479, 365 A.2d 545, 553 (1976) (same) (citation omitted).

It may seem inconsistent that: (1) this Court construed Article X, Section 5 and its 

successors to mean that, in a criminal case, the jury is the judge of the law of the crime; 

whereas (2) Article X, Section 5’s language that “the jury shall be the judges of law” 

suggests that its purpose was to supersede the English common law principle that, in a 

criminal case, the jury only applied the law of the crime to the facts, see Slansky, 192 Md. 

at 101, 63 A.2d at 601. There is, however, no such inconsistency; Article X, Section 5’s 

purpose was actually to codify the English common law principle. As noted above, the 

English common law principle was in effect in 1776. See id. at 101, 63 A.2d at 601. In 

that year, Maryland received the English common law, see Md. Decl. of Rts. Art. 3 (1776) 

(“[T]he inhabitants of Maryland are entitled to the common law of England[.]”), and the 

Constitution of Maryland of 1776 was otherwise silent regarding whether the jury was 

judge of the law in a criminal case, see Slansky, 192 Md. at 104, 63 A.2d at 603. Thus, 

despite the “opposing views as to the powers of [the] jury in a criminal case” between 1776 

and 1851, Franklin, 12 Md. at 245 (LeGrand, C.J., concurring), Maryland received in 1776 

the English common law principle that, in a criminal case, the trial court decided the law, 

and the jury applied the law to the facts. Indeed, as this Court expressly recognized, Article 

X, Section 5 of the Constitution of Maryland of 1851 did not supersede the English 

common law principle; to the contrary, Article X, Section 5 codified it. See id. at 249 (This 

Court stated that Article X, Section 5 “is merely declaratory, and has not altered the preexisting law regulating the powers of the [trial] court and [the] jury in criminal cases.” 
- 8 - 

(Emphasis added)); see also In re Glenn, 54 Md. 572, 600 (1880) (Article X, Section 5 is 

“only declaratory of the pre-existing common law upon the subject.” (Citing Franklin, 

12 Md. at 249) (emphasis added)). Thus, Article X, Section 5’s purpose was to secure 

uniformity of decision in favor of the English common law principle, not against it. See 

Franklin, 12 Md. at 245 (LeGrand, C.J., concurring) (“[T]o guard in the future against . . . 

conflict, the provision was inserted in the constitution.”). 

Given that Article X, Section 5’s purpose was to codify the English common law 

principle, one may wonder why Article X, Section 5’s drafters chose the words “the jury 

shall be the judges of law[.]” The reason is simple: Article X, Section 5’s drafters wanted 

to make clear that, in a criminal case in which a jury trial occurred, the jury, and only the 

jury, applied the law of the crime to the facts; in other words, the trial court could not apply 

the law of the crime to the facts by ordering a directed verdict (whether guilty or not guilty), 

and an appellate court could not could not apply the law of the crime to the facts by 

reviewing the sufficiency of the evidence. See Newton v. State, 147 Md. 71, 87, 127 A. 

123, 130 (1924) (Citing Article X, Section 5’s identical successor, this Court noted that a 

trial court cannot order “a directed verdict in [a] criminal case[]”; this Court disapproved 

of Horning v. District of Columbia, 254 U.S. 135, 139 (1920), in which the Supreme Court 

held that a trial court did not err in telling a jury: “I cannot tell you, in so many words, to 

find defendant guilty, but what I say amounts to that.”); Deems v. State, 127 Md. 624, 628, 

96 A. 878, 879 (1916) (“The [trial] court is given no authority to decide as to the . . . 

sufficiency of [the] evidence . . . . It is expressly denied the right to determine a question 

of that nature by” Article X, Section 5’s identical successor. (Citing Dick, 107 Md. at 17, 
- 9 - 

68 A. at 288; Jessup, 117 Md. at 123, 83 A. at 142)); Wolf v. State, 143 Md. 489, 493, 122 

A. 641, 642-43 (1923) (“Under the Constitution of [Maryland] . . . . [i]t is . . . not within 

our jurisdiction, as an appellate tribunal, to determine as to the legal sufficiency of the 

evidence[.]” (Citing Weeks v. State, 126 Md. 223, 229, 94 A. 774, 776 (1915); Jessup, 

117 Md. at 123, 83 A. at 142)). Of course, it is no longer the law that, in a criminal case 

in which a jury trial occurs, a court cannot apply the law of the crime to the facts; today, a 

trial court can enter a judgment of acquittal, and an appellate court can reverse a conviction 

that is based on insufficient evidence. See Md. Const. Art. XV, Sec. 5 (amended 1950) 

(“In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, 

except that the Court may pass upon the sufficiency of the evidence to sustain a 

conviction.” (Emphasis added)); Md. Decl. of Rts. Art. 23 (2010) (same).4 That said, it 

remains the law that a trial court cannot order a directed verdict of guilty—as Article 23 

and its predecessors have contemplated. 

In sum, this Court consistently recognized that Article 23 and its predecessors mean 

that, in a criminal case, the jury is the judge of the law of the crime. Thus, in Stevenson, 

289 Md. at 178, 423 A.2d at 564, this Court was correct in noting that, under more than a 

century’s worth of precedent, in a criminal case, the jury’s “authority is limited to deciding 

‘the law of the crime,’ Wheeler[], 42 Md. [at] 570[], or ‘the definition of the crime,’ as well 

as ‘the legal effect of the evidence before (the jury).’ Beard[], 71 Md. [at] 280, 17 A. [at] 

 

4

In 1978, through a constitutional amendment, Article XV, Section 5 was recodified 

as Article 23 of the Maryland Declaration of Rights. See 1977 Md. Laws 2743-49 (Ch. 

681, H.B. 463). 
- 10 - 

1045[]. And this Court has consistently interpreted [Article 23 and its predecessors] as 

restraining the jury’s law[-]deciding power to this limited, albeit important, area.” See also 

Stevenson, 289 Md. at 177-78, 423 A.2d at 563-64 (This Court quoted Franklin, 12 Md. at 

245-46 (LeGrand, C.J., concurring) for the principle that “the jury was not granted, by 

Article 23[ and its predecessors], the power to decide all matters that may be correctly 

included under the generic label ‘law.’”). One year after Stevenson, in Montgomery, 292 

Md. at 87-88, 437 A.2d at 656, in accordance with Stevenson and earlier precedent, this 

Court correctly reaffirmed that, in a criminal case, the jury’s “authority is limited to 

deciding the law of the crime, or the definition of the crime, as well as the legal effect of 

the evidence before the jury.” (Quoting Stevenson, 289 Md. at 178, 423 A.2d at 564) 

(citations, parentheses, and internal quotation marks omitted).5

Twenty-seven years after Montgomery, in Adams, 406 Md. at 256, 958 A.2d at 305, 

writing for this Court, Judge Harrell correctly and cogently explained that “Stevenson and 

Montgomery, by their express terms, did not announce new law.” See also Adams, 406 

Md. at 257, 958 A.2d at 305 (“[T]he Stevenson court is clear that it did not make new law, 

but rather it merely clarified what has always been the law in Maryland.” (Citation and 

internal quotation marks omitted)). Appropriately taking stare decisis into account, Judge 

Harrell declared: “We shall not here disturb the holdings of Montgomery and Stevenson.” 

 

5Tellingly, the dissent in Stevenson, 289 Md. at 189-204, 423 A.2d at 570-77 

(Eldridge, J., dissenting), and the concurrence in Montgomery, 292 Md. at 96, 437 A.2d at 

660 (Eldridge, J., concurring) failed to dispute that this Court consistently recognized that 

Article 23 and its predecessors mean that, in a criminal case, the jury is the judge of the 

law of the crime. 
- 11 - 

Adams, 406 Md. at 259, 958 A.2d at 307. 

In Adams, the dissent disputed that this Court consistently recognized that Article 

23 and its predecessors mean that, in a criminal case, the jury is the judge of the law of the 

crime. Specifically, the dissent accused this Court of “re-draft[ing]” Article 23 in both 

Stevenson and Adams. Adams, 406 Md. at 301, 958 A.2d at 332 (Eldridge, J., dissenting). 

The dissent attempted to support its accusation with multiple unpersuasive contentions. 

The dissent asserted that none of this Court’s precedent “support[s] the proposition 

that the jury’s right to decide the law in criminal cases is limited to the ‘law of the crime’ 

and the ‘legal effect of the evidence.’” Adams, 406 Md. at 313-14, 958 A.2d at 340 

(Eldridge, J., dissenting) (footnote omitted). The dissent attempted to reconcile its 

assertion with Wheeler, 42 Md. at 570 (“[A]ny instruction given by the [trial c]ourt, as to 

the law of the crime, is but advisory, and in no manner binding upon the jury, except in 

regard to questions as to what shall be considered as evidence.” (Some emphasis in 

original)) and Beard, 71 Md. at 280, 17 A. at 1045 (“The [trial court] . . . cannot, by any 

instruction given in a criminal case, bind the jury as to the definition of the crime, or as to 

the legal effect of the evidence before them.” (Emphasis added)) by myopically fixating 

on the circumstance that this Court did not use the word “limited” or a similar term. See 

Adams, 406 Md. at 312 n.7, 314, 958 A.2d at 339 n.7, 340 (Eldridge, J., dissenting). 

Respectfully, the dissent’s observation was beside the point. In Wheeler, 42 Md. at

570, Beard, 71 Md. at 280, 17 A. at 1045, and voluminous other cases, this Court did not 

need to use the word “limited” or a similar term in interpreting Article 23 and its 

predecessors; by definition, if Article 23 and its predecessors mean one thing, then Article 
- 12 - 

23 and its predecessors do not mean anything else. By way of comparison, generally, 

where a statute expressly defines a term as “X, Y, or Z,” that statutory definition excludes 

any meaning other than “X, Y, or Z.” See Potomac Abatement, Inc. v. Sanchez, 424 Md. 

701, 712, 37 A.3d 972, 978 (2012) (Under the doctrine of expressio unius est exclusio 

alterius (“the expression of one thing is the exclusion of another”), “statutory lists are often 

interpreted as exclusive, so that a court will draw the negative inference that no other items 

may be added.” (Citation omitted)). Thus, if Article 23 and its predecessors mean that the 

jury is the judge of the law of the crime, then Article 23 and its predecessors do not mean 

that the jury is able to make any other legal determination. It follows that this Court did 

not “announce new law” in Stevenson, 289 Md. at 178, 423 A.2d at 564, by accurately 

noting that, under more than a century’s worth of precedent, in a criminal case, the jury’s 

“authority is limited to deciding ‘the law of the crime,’ Wheeler[], 42 Md. [at] 570[], or 

‘the definition of the crime,’ as well as ‘the legal effect of the evidence before (the jury).’ 

Beard[], 71 Md. [at] 280, 17 A. [at] 1045[].” 

The dissent interpreted snippets of dicta in an attempt to support the proposition that 

there were only two “exceptions” to Article 23 and its predecessors: the admissibility of a 

piece of evidence, and the constitutionality of a statute. See Adams, 406 Md. at 312 n.7, 

314, 315-17, 958 A.2d at 339 n.7, 340, 341-42 (Eldridge, J., dissenting). For example, the 

dissent misplaced its reliance on the word “except” in Wheeler, 42 Md. at 570 (“[A]ny 

instruction given by the [trial c]ourt, as to the law of the crime, is but advisory, and in no 

manner binding upon the jury, except in regard to questions as to what shall be considered 

as evidence.” (Emphasis in original)) and the word “only” in Beard, 71 Md. at 280, 17 A. 
- 13 - 

at 1045 (A trial court “can only bind . . . the jury as to what evidence shall be considered 

by” the jury.). See Adams, 406 Md. at 312 n.7, 958 A.2d at 339 n.7 (Eldridge, J., 

dissenting). 

The dissent’s strained interpretation of these isolated words is undermined not only 

by the bevy of cases in which this Court consistently recognized that Article 23 and its 

predecessors mean that, in a criminal case, the jury is the judge of the law of the crime, see, 

e.g., Bloomer, 48 Md. at 540 (“[I]t was the duty of the [trial c]ourt to leave it to the jury to 

say[] whether the evidence was sufficient in law and in fact to prove the [crime] charged.”), 

but also by the circumstance that the admissibility of a piece of evidence and the 

constitutionality of a statute are far from the only “exceptions” to Article 23 and its 

predecessors; for example, this Court has long held that Article 23 and its predecessors do 

not enable the jury to determine: (1) when a statute became effective, see Slymer v. State, 

62 Md. 237, 241 (1884); (2) whether the General Assembly has repealed a statute, see

Nolan v. State, 157 Md. 332, 340, 146 A. 268, 271 (1929); or (3) whether the trial court 

has jurisdiction, see Kelly v. State, 151 Md. 87, 98-99, 133 A. 899, 903 (1926). 

The dissent asserted that “[t]his Court has never explained what legal issues 

precisely fall within the phrases ‘law of the crime’ and ‘legal effect of the evidence.’” 

Adams, 406 Md. at 314 n.8, 958 A.2d at 340 n.8 (Eldridge, J., dissenting). The dissent was 

mistaken. In Franklin, 12 Md. at 249, a majority of this Court adopted part of the 

concurring opinion of Chief Justice LeGrand, who equated “the law of the crime” with “an 

act defining murder, arson[,] or any other crime,” id. at 246 (LeGrand, C.J., concurring). 

In Vogel, 163 Md. at 274, 162 A. at 707-08, this Court defined “legal effect of the 
- 14 - 

evidence” as “the effect, in law, of admitted evidence upon the issue of guilt or 

innocence[.]” (Citations omitted). 

The dissent listed multiple cases in which this Court stated that, if a trial court 

instructs the jury, the trial court must label the jury instructions as “advisory.” See Adams, 

406 Md. at 318-25, 958 A.2d at 342-47 (Eldridge, J., dissenting). For example, the dissent 

noted that, in Klein v. State, 151 Md. 484, 493, 489, 135 A. 591, 595, 593 (1926), this 

Court affirmed a conviction where a trial court instructed a jury about the presumption of 

innocence and the burden of proof beyond a reasonable doubt, but told the jury that the 

jury instructions were “advisory”; this Court stated: “[T]he [trial] court cannot give [the

jury] binding instructions in [criminal] cases.” See Adams, 406 Md. at 320-21, 958 A.2d 

at 344 (Eldridge, J., dissenting). The dissent failed to mention that this Court’s statement 

in Klein, 151 Md. at 489, 135 A. at 594, was dicta; the issue of the jury instructions’ 

propriety was “not . . . properly before” this Court because the defendant “fail[ed] . . . to 

point out the specific instructions to which he objected.” Id. at 489, 490, 135 A. at 594. 

Indeed, in no case, including Klein, has this Court ever held that a trial court did not err in 

giving “advisory” jury instructions that implicate federal constitutional rights (such as the 

presumption of innocence).6 Thus, the dissent’s reliance on Klein and similar cases was 

 

6

It is true that Maryland Rule 757b (1963 Repl. Vol.) stated: “The court shall in 

every case in which instructions are given to the jury, instruct the jury that they are the 

judges of the law and that the court’s instructions are advisory only.” However, Maryland 

Rule 757b does not necessarily stand for the proposition that this Court condoned giving 

“advisory” jury instructions that implicated federal constitutional rights. This Court 

rejected facial challenges to Article 23 and its predecessors based on federal constitutional 

rights in Slansky, 192 Md. at 99, 111, 63 A.2d at 601, 606, Giles v. State, 229 Md. 370, 
- 15 - 

misplaced.7

Tellingly, the dissent did not even mention, much less address, stare decisis, see 

Adams, 406 Md. at 299-340, 958 A.2d at 331-56 (Eldridge, J., dissenting); instead, the 

dissent acted as though it were writing on a blank slate, when in fact Stevenson and 

Montgomery had already been carved into the law of Maryland. 

A mere four years after Adams, in Unger, this Court pummeled stare decisis by 

overruling Adams and decades’ worth of other case law and reasoning that “Stevenson and 

Montgomery . . . set forth a new interpretation of Article 23[.]” Unger, 427 Md. at 411, 48 

A.3d at 258. In Unger, instead of meaningfully attempting to meet the high burden of 

establishing that Adams was clearly wrong and contrary to established principles, this 

Court simply adopted parts of the dissent in Adams, see Unger, 427 Md. at 411, 48 A.3d 

at 258, and essentially copied-and-pasted several passages from the dissent in Adams into 

 

382, 183 A.2d 359, 364 (1962), and Stevenson, 289 Md. at 189, 423 A.2d at 570, but this 

Court did not consider an as-applied challenge to Article 23 and its predecessors based on 

federal constitutional rights until Montgomery, 292 Md. at 89-90, 437 A.2d at 657 (“[I]t 

was error [for a trial court] to instruct [a] jury that [its] instructions were advisory and that 

the jury could pay absolutely no attention to [its] instructions.”). In other words, until 

Montgomery, this Court never addressed whether a trial court erred in giving “advisory” 

jury instructions that implicated federal constitutional rights; and, in no case has this Court 

ever condoned giving “advisory” jury instructions that implicated federal constitutional 

rights. 

7As another example, the dissent noted that, in Bruce v. State, 218 Md. 87, 98, 145 

A.2d 428, 434 (1958), this Court stated: “[A]s [a trial] court properly advised [a] jury, the 

defendant is ‘presumed to be innocent until proven guilty beyond a reasonable doubt, and 

that presumption attends him throughout the trial until overcome by proof establishing his 

guilt beyond a reasonable doubt and to a moral certainty.’” See Adams, 406 Md. at 320, 

958 A.2d at 344 (Eldridge, J., dissenting). This Court’s statement in Bruce was dicta; at 

issue was the propriety of jury instructions regarding the difference between murder and 

manslaughter, not jury instructions that implicated federal constitutional rights. 
- 16 - 

Unger, compare Adams, 406 Md. at 312-36, 958 A.2d at 339-53 (Eldridge, J., dissenting) 

with Unger, 427 Md. at 411-16, 48 A.3d at 258-61. Tellingly, in Unger, without any careful 

analysis, this Court stated that Stevenson, Montgomery, and Adams were merely 

“erroneous,” not “clearly wrong and contrary to established principles.” Unger, 427 Md. 

at 417, 48 A.3d at 261, 262. Thus, the Majority is simply wrong in stating that “[t]he Unger 

Court, in reaching the legal conclusions that it did, applied the very principles of, and 

exceptions to, the doctrine of stare decisis, [on which] the State relies . . . in seeking a return 

to . . . Stevenson, Montgomery, and Adams[.]” Maj. Slip Op. at 8. Indeed, as Judge Harrell 

perceptively noted, this Court in Unger, much like the dissent in Adams, acted as though it

were addressing “an open question requiring an answer, which, based on our holding in 

Adams, it clearly is not.” Unger, 427 Md. at 429, 48 A.3d at 269 (Harrell, J., dissenting) 

(citation omitted). 

The dissent in Adams was clearly wrong and contrary to established principles in

disputing that this Court consistently recognized that Article 23 and its predecessors mean 

that, in a criminal case, the jury is the judge of the law of the crime. And, in Unger, this 

Court was even more clearly wrong in overruling Adams. The only correct result is to

overrule Unger and restore Adams, Montgomery, and Stevenson to their rightful place as 

good law consistent with more than a century’s worth of this Court’s precedent. 

Regrettably, this Court’s precedent was not the only thing that Unger disturbed eons 

after it was thought to be settled. Unger opened the floodgates for individuals to exhume 

decades-old convictions for murder, rape, and other serious crimes. As a result, victims 

and their family members have been forced to relive traumatic experiences long after they 
- 17 - 

thought that they had finally achieved closure. Additionally, dozens of individuals have 

been released in Unger’s wake.

8

Despite Unger’s consequences, the Majority refrains from overruling it, ostensibly 

based on good intentions and the honest belief that the Majority’s decision bolsters stare 

decisis. See Maj. Slip Op. at 1, 6-9. In actuality, however, the Majority condones the blow 

to stare decisis that was brought about in Unger, and undermines even further “the 

evenhanded, predictable, and consistent development of legal principles, . . . reliance on 

judicial decisions, and . . . the actual and perceived integrity of the judicial process.” 

Thompson v. UBS Fin. Servs., Inc., 443 Md. 47, 58, 115 A.3d 125, 131 (2015) (citation 

and internal quotation marks omitted). The Majority’s decision will injure not only all of 

this Court’s precedent, but also the public by permitting the reopening of serious criminal 

cases on unsound legal grounds.

9

 In short, although the Majority purports to avoid “generat[ing]” uncertainty,” Maj. 

Slip Op. at 1, the Majority actually cultivates a lack of consistency in case law by 

 

8Peter Sutro Waine, Respondent, and multiple amici note that, if this Court overrules 

Unger, some individuals will have benefitted from Unger, while others will have not. I am 

unpersuaded by the contention that this circumstance would create undue disparity. 

Because Unger was clearly wrong and contrary to established principles, those who have 

been released from incarceration were not entitled to relief in the first place. Now is the 

time to correct the error that is Unger; it is better to close the floodgates late than to never 

close them at all.

9As an aside, although I strongly disagree with the Majority’s decision to reaffirm 

Unger, if Unger remains the law, I agree with the Majority that, here, the Circuit Court for 

Harford County did not abuse its discretion in reopening the postconviction proceeding 

based on a challenge to “advisory” jury instructions. See Maj. Slip Op. at 10. I also agree 

with the Majority that a challenge to “advisory” jury instructions is not controlled by the 

“reasonable likelihood” test. See Maj. Slip Op. at 11. 
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sanctioning the undermining of the doctrine of stare decisis that was perpetrated in Unger. 

 For the above reasons, respectfully, I dissent.