Derr v. State

¶1dissenting.

¶2I very much doubt whether the majority opinion has correctly interpreted and applied the Confrontation Clause of the Sixth Amendment. Nevertheless, because there was no opinion by the Court, in Williams v. Illinois, 567 U.S.-, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012), and probably no holding shared by the Williamsplurality and Justice Thomas, I would no longer attempt to reach the Sixth Amendment issue in this case. Instead, I would hold, as this Court previously held, *141that Derr’s right of confrontation under Article 21 of the Maryland Declaration of Rights was violated and that, therefore, Derr is entitled to a new trial as a matter of Maryland law.

¶3I.

¶4With regard to the Sixth Amendment’s Confrontation Clause and the lack of a Supreme Court majority opinion in Williams v. Illinois, this Court’s majority opinion purports to apply the standard set forth in Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 993, 51 L.Ed.2d 260, 266 (1977), which is as follows (internal quotation marks and citation omitted, emphasis added):

“When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.... ”

¶5Judge Greene’s majority opinion for this Court “conclude[s] that the narrowest holding of Williamsis that a statement, at a minimum, must be formalized to be testimonial” (majority opinion at 115, 73 A.3d at 270) and “that courts should rely on Justice Thomas’s concurrence to determine whether a statement is formalized” (id. at 116, 73 A.3d at 271).

¶6The Supreme Court has pointed out that the Marks “test is more easily stated than applied,” Nichols v. United States, 511 U.S. 738, 745, 114 S.Ct. 1921, 1926, 128 L.Ed.2d 745, 753 (1994), and Grutter v. Bollinger, 539 U.S. 306, 325, 123 S.Ct. 2325, 2337, 156 L.Ed.2d 304, 330 (2003). In Grutter, the Supreme Court seemed particularly concerned about applying the Marks test to conclude that a portion of the opinion of one Justice, not joined by any other Justice, represented the Court’s holding.

¶7If Justice Thomas’s opinion in Williamsdid represent the holding of the Court, it is difficult to understand why no member of the plurality joined the Thomas opinion, or why *142Justice Thomas did not join a portion of the plurality opinion.1 Furthermore, the opening paragraph of Justice Thomas’s opinion indicated a lack of any common ground between Justice Thomas’s opinion and the plurality opinion. Justice Thomas stated: “I share the dissent’s view of the plurality’s flawed analysis.” Williams, 567 U.S. at-, 132 S.Ct. at 2255, 183 L.Ed.2d at 129. The opening paragraph of Justice Thomas’s Williamsopinion also referred to his previous concurring opinion in Michigan v. Bryant, 562 U.S. -, 131 S.Ct. 1143, 1167, 179 L.Ed.2d 93, 120 (2011), also an opinion which no other Justice joined.

¶8The majority today, based solely on one Justice’s lone opinion, overturns this Court’s unanimous 2011 decision in the present case which had granted Mr. Derr a new trial.2 Consequently, unless and until the Supreme Court clarifies the application of the Sixth Amendment’s Confrontation Clause to evidence of the type involved in this case, Justice Thomas’s opinion in Williamswill control the application in Maryland courts of the Federal Constitution’s right of confrontation. Moreover, under the majority opinion today, Justice Thomas’s Williamsopinion apparently will control the application of the Confrontation Clauses in Article 21 of the Maryland Declaration of Rights. I cannot agree with such a result.

¶9II.

¶10The Confrontation Clauses of the Maryland Constitution, Article 21 of the Declaration of Rights, provide as follows:

*143“That in all criminal prosecutions, every [person] hath a right … to be confronted with the witness against him; … to examine the witnesses for and against him on oath;

¶11The above-quoted language is identical to that in Article 19 of the Maryland Declaration of Rights in 1776. Thus, the Confrontation Clauses of the Maryland Constitution preceded by 15 years the Sixth Amendment’s Confrontation Clause which was ratified in 1791, and it preceded by 189 years the Supreme Court’s decision that the Sixth Amendment’s Confrontation Clause was applicable to state criminal proceedings.

¶12In many cases presenting claims that constitutional rights were violated, involving both a provision of the Maryland Constitution and a counterpart provision of the Federal Constitution, this Court’s opinions have separately addressed the Maryland constitutional provision. In those cases, upon deciding that a violation of the Maryland Constitution did occur, we have either not reached the Federal constitutional issue or have made it clear that our decision under the Maryland Constitution was independent of our views under the counterpart provision of the Federal Constitution.

¶13Moreover, as the highest Court under the Maryland Constitution, and the Court authorized to render binding decisions interpreting and applying that Constitution, we have not deemed it necessary or appropriate to explain why our decision was based on the Maryland constitutional provision. See Marshall v. State, 415 Md. 248, 260, 999 A.2d 1029,1035 (2010) (While the petitioner relied on both the Federal and the State Constitutions, “we shall rest our decision, as we have often done in the past, solely upon the Maryland provisions”); Kawamura v. State, 299 Md. 276, 286, 473 A.2d 438, 444 (1984) (“Because we determine that [the statute] was invalidly applied in light of the state constitution, we need not consider whether there was also a violation of Kawamura’s right ... under the Sixth and Fourteenth Amendments to the federal constitution”). See also, e.g., Doe v. Dept. of Public Safety, 430 Md. 535, 547, 62 A.3d 123, 129-130 (2013) (plurality opinion); Green Party v. Board of Elections, 377 Md. 127, *144153-158, 832 A.2d 214, 229-233 (2003); Dua v. Comcast Cable, 370 Md. 604, 620-623, 805 A.2d 1061, 1070-1073 (2002); Frankel v. Board, of Regents, 361 Md. 298, 312-314, 761 A.2d 324, 332 (2000); Perry v. State, 357 Md. 37, 85-87, 741 A.2d 1162, 1188 (1999); Verzi v. Baltimore County, 333 Md. 411, 416-418, 427, 635 A.2d 967, 969-970, 974-975 (1994); Attorney General v. Waldron, 289 Md. 683, 714-729, 426 A.2d 929, 946-954 (1981).

¶14As pointed out above, we need no particular reason or explanation for resting our decision on the Confrontation Clauses of the Maryland Declaration of Rights and not reaching the issue under the Sixth Amendment’s Confrontation Clause. In fact, as Maryland’s highest Court, we should be expected to first address a provision of the Maryland Constitution rather than a counterpart provision of the Federal Constitution. Nevertheless, if some reason or explanation were needed or appropriate, the failure of the Supreme Court to render an opinion in Williams v. Illinois would clearly justify basing our decision on Article 21 of the Declaration of Rights and not reaching the Sixth Amendment issue.

¶15Another reason for separately discussing and deciding the confrontation issue under Article 21 of the Maryland Declaration of Rights is the history of this case. When the case was before us previously, the first question presented by the appellant Derr was as follows (Derr v. State, 422 Md. 211, 215, 29 A.3d 533, 536 (2011), emphasis added, footnote omitted):

“1. Whether Derr’s federal and state constitutional rights of confrontation were violated when the State was permitted to introduce the opinion of a serology examiner and the results of DNA testing of biological evidence through the testimony of an expert who did not participate either directly or in a supervisory capacity, without calling the analyst who performed the testing as a witness or showing that the analyst was unavailable and Derr had a prior opportunity to cross-examine?”

¶16Our reply to the question was as follows (Derr, 422 Md. at 216, 29 A.3d at 536): ‘We shall answer the first question in the *145affirmative.” Therefore, this Court in Derr, in addition to holding that Derr’s Sixth Amendment confrontation right was violated, also held that Derr’s “state constitutional right[ ] of confrontation [was] violated.”

¶17The next judicial ruling in the case was the Supreme Court’s order of June 29, 2012, which stated in its entirety as follows:

“The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the Court of Appeals of Maryland for further consideration in light of Williams v. Illinois, 567 U.S. - [132 S.Ct. 2221, 183 L.Ed.2d 89] (2012).”

¶18The only constitutional provision discussed by the various opinions in Williams v. Illinois was the Confrontation Clause of the Sixth Amendment to the United States’ Constitution. Nothing in the Supreme Court’s above-quoted order or in the various Williamsopinions required this Court to overturn our prior holding that Derr’s right of confrontation under Article 21 of the Maryland Declaration of Rights was violated.

¶19After the Supreme Court remand order, the appellant filed a motion for supplemental briefing. This Court on August 20, 2012, filed the following order (emphasis added):

“ORDERED, by the Court of Appeals of Maryland, that the motion be, and it is hereby granted and supplemental briefing and oral argument shall be completed separately on the following constitutional issues:

(1) The application of the Confrontation Clause of the Sixth Amendment in light of the United States Supreme Court’s decision in Williams v. Illinois [— U.S.-], 132 S.Ct. 2221 [183 L.Edüd 89] (2012) and the Supreme Court’s subsequent decision to vacate the judgment of this Court in Derr v. State, 422 Md. 211, 29 A.3d 533 (2011).

(2) The application of the Confrontation Clause of Article 21 of the Md. Declaration of Rights which provides ‘in all criminal prosecutions, every man hath a right ... to be confronted with the witnesses against him;’ ”

¶20*146Consequently, our order required that the issue under Article 21 of the Declaration of Rights be treated “separately.” Paragraph (2) of the order amounted to a separate reconsideration of Article 21’s application under the facts of this case.

¶21Judge Greene’s majority opinion today, instead of discussing separately the application of Article 21’s Confrontation Clauses to the facts of this case, simply states that a defendant’s confrontation rights under Article 21 are “m pan materia ” with his rights under the Sixth Amendment’s Confrontation Clause, and that Derr has failed “to persuade this Court to deviate from that practice” of treating the rights in pan materia. (Opinion at p. 103, 73 A.3d at 263). This might be a satisfactory answer only if our treating a Maryland constitutional right in pari materia with its Federal counterpart meant that the Maryland right would always be interpreted and applied exactly the same as its Federal counterpart. Of course, as the author of today’s majority opinion well knows, that is not the meaning of a Maryland constitutional right being deemed in pari materia with a Federal counterpart.

¶22Thus, just this year in Doe v. Department of Public Safety, supra, 430 Md. at 547-551, 62 A.3d at 129-132, involving the Maryland Declaration of Rights’ ex post facto provision in Article 17 and its counterpart in the Federal Constitution, Judge Greene pointed out that (430 Md. at 548, 62 A.3d at 130-131)

“we have read the protection against ex post facto laws in Article 17 of the Declaration of Rights in pari materia with, or as generally having the same meaning as the Ex Post Facto Clause in Article 1 of the federal Constitution.”

¶23After saying that the two provisions were in pari materia, Judge Greene stated that the “standards may be different” under the two provisions and that (430 Md. at 549, 62 A.3d at 131)

“[throughout our case law, we have recognized that, in many contexts, the protections provided by the Maryland Declaration of Rights are broader than the protections provided by the parallel federal provision.”

¶24*147Judge Greene’s opinion continued (ibid.) by quoting Dua v. Comcast Cable, 370 Md. 604, 621, 805 A.2d 1061, 1071 (2002) as follows:

“ ‘Many provisions of the Maryland Constitution ... do have counterparts in the United States Constitution. We have often commented that such state constitutional provisions are in pañ materia with their federal counterparts or are the equivalent of federal constitutional provisions or generally should be interpreted in the same manner as federal provisions. Nevertheless, we have also emphasized that, simply because a Maryland constitutional provision is in pari materia with a federal one or has a federal counterpart, does not mean that the provision will always be interpreted or applied in the same manner as its federal counterpart. Furthermore, cases interpreting and applying a federal constitutional provision are only persuasive authority with respect to the similar Maryland provisions.’ ”

¶25This Court has regularly, and consistently, adhered to the above described meaning of a Maryland constitutional provision being deemed in pari materia with a Federal constitutional provision. Recently, in Frey v. Comptroller, 422 Md. 111, 176, 29 A.3d 475, 513 (2011), Judge (now Chief Judge) Barbera for the Court emphasized, concerning Article 24 of the Declaration of Rights and the Fourteenth Amendment’s Equal Protection Clause, that “our tendency to construe both provisions in pari materia does not signal that Article 24 ‘will always be interpreted or applied in the same manner as its federal counterpart.’ ” Judge Barbera continued (422 Md. at 177, 29 A.3d at 513): “Accordingly, even though we have already determined that the [tax statute] does not violate the Equal Protection Clause of the federal Constitution, we must address separately whether, under the applicable Maryland authorities, that tax violates the State’s equal protection guarantee.”

¶26In Lupfer v. State, 420 Md. 111, 129-130, 21 A.3d 1080, 1091 (2011), concerning the right against self-incrimination, Judge Harrell for the Court stated (citations and footnote omitted):

*148“A common misperception notwithstanding — that statutory or constitutional provisions that are ‘in pari materia’ with one another must be construed in a like manner — we said that ‘simply because a Maryland constitutional provision is in pari materia with a federal one ... does not mean that the provision will always be interpreted or applied in the same manner as its federal counterpart.’ ... Not inconsistent then with the phrase, ‘in pari materia, ’ ‘we have ... interpreted Maryland’s privilege against self-incrimination ... to be more comprehensive than that contained in the federal Bill of Rights.’ ”

¶27See also, e.g., Tyler v. College Park, 415 Md. 475, 499-500, 3 A.3d 421, 434-435 (2010) (“Article 24 and the Fourteenth Amendment are independent and capable of divergent effect”); Marshall v. State, supra, 415 Md. at 259-260 n. 4, 999 A.2d at 1035 n. 4 (The Court pointed out that “[t]here is no inconsistency between this Court’s statement that [a] Maryland [constitutional right] is ‘generally in pari materia’ with [its federal counterpart] and our holdings that, to some extent, [the] Maryland [provision] grants greater protections to the individual than” the federal counterpart); Parker v. State, 402 Md. 372, 401, 936 A.2d 862, 879 (2007); Green Party v. Board of Elections, supra, 377 Md. at 153-158, 832 A.2d at 229-232; Dua v. Comcast Cable, supra, 370 Md. at 620-623, 805 A.2d at 1066-1068; Crosby v. State, 366 Md. 518, 527 n. 8, 534, 784 A.2d 1102, 1107 n. 8, 1111 (2001); Frankel v. Board of Regents, supra, 361 Md. at 313, 761 A.2d at 332; Manikhi v. Mass Transit, 360 Md. 333, 361-362, 758 A.2d 95, 110 (2000); Perry v. State, supra, 357 Md. at 85-87, 741 A.2d at 1168 (1999); Maryland Aggregates v. State, 337 Md. 658, 671-672 n. 8, 655 A.2d 886, 893 n. 8 (1995); Verzi v. Baltimore County, supra, 333 Md. at 417, 635 A.2d at 970; Gahan v. State, 290 Md. 310, 322, 430 A.2d 49, 55 (1981); Attorney General v. Waldron, supra, 289 Md. at 714-715, 426 A.2d at 946.

¶28To reiterate, the majority fails to discuss “separately” Article 21’s application to the admission of the test results under the facts of this case, and in accordance with our prior order. Moreover, nothing in the Supreme Court’s remand order *149affects this Court’s prior judgment insofar as it was alternatively grounded on Article 21 of the Maryland Declaration of Rights. Consequently, under these circumstances, principles of stare decisis should lead the Court to reinstate our prior judgment based entirely on the Confrontation Clauses of Article 21 of the Maryland Declaration of Rights.

¶29Chief Judge BELL joins this dissenting opinion.