JAMES A. CALHOUN-EL v. STATE OF MARYLAND
Court of Special Appeals, Dec. 21, 2016, Graeff,
Post-Conviction – Unger – In a trial where the jury was advised that they were bound by constitutional instructions but were the judges of law for specific offenses, the Defendant waived his challenge by not objecting

The CoSA attempts to draw a line where Unger challenges aren’t “automatic” new trials, latching on to Watts’ dissent in Adams-Bey.

Facts: In 1981, Defendant was convicted of the murder of a Montgomery County police officer called to investigate a burglary in which Defendant was participating. The jury was advised that they were bound by constitutional instructions but were the sole judges of law with regard to the offenses.
Here’s where it gets a bit murky:

the instructions given here were not a model of clarity, the court clearly informed the jury that it would provide two sets of instructions, the first set being binding instructions on constitutional principles. When it finished instructing the jury on those principles, and it came to the section regarding the specific offenses, the court reiterated that the instructions that had just been given were binding constitutional instructions. It then explained that the next instructions, which were “advisory,” related to the “offenses themselves.

Under the UPPA, failure to object at trial waives the error.

While most Unger cases sidestep this (since it would have been pointless to object to something that was clearly included in the rules of the time), this case presents a distinction in that the underlying issue HAD been addressed in part by the Court of Appeals in Stevenson and therefore objection could have been proper.