BARBERA, J.
Maryland Code (2002, 2010 Supp.), § 2-203(a)(3) of the Criminal Law Article ("CrL") forbids the imposition of the death penalty without the State having first presented to the jury or court, inter alia, biological or DNA evidence linking the
Upon the court's denial of that request, Petitioner noted an immediate appeal to the Court of Special Appeals. The State filed a motion to dismiss the appeal on the ground that the appeal is an impermissible interlocutory appeal. The Court of Special Appeals denied the motion without prejudice, and docketed argument for April 2011.
Before briefing and argument in that court, we issued a writ of certiorari, on our initiative, to consider the case. We also issued a stay of further proceedings in the Circuit Court pending the outcome of the appeal. We heard argument in the case on April 8, 2011, and, on April 12, 2011, issued a per curiam order dismissing the appeal and vacating the stay. This opinion sets forth our reasons for dismissing the appeal.
On May 7, 2009, the General Assembly enacted Maryland Senate Bill 279, which altered Maryland's death penalty scheme. Of importance for our purposes, SB 279 added to CrL § 2-202(a), entitled "Requirement for imposition," the following provision:
On August 15, 2009, Petitioner filed a Motion to Preclude the Death Penalty on the ground that the death penalty statute as amended is unconstitutional. Petitioner later filed a Supplemental Memorandum on October 15, 2009, requesting a pre-trial "full evidentiary hearing" to determine whether, as a matter of law, there was DNA evidence linking him to the murder, thereby rendering him death penalty eligible under CrL § 2-202(a)(3)(i).
At that hearing, Petitioner argued that CrL § 2-202(a)(3) entitled him to a pre-trial hearing to determine whether "a jury could [ ] find in the light most favorable to the state that the DNA links [him] to the act of murder." Petitioner maintained that a pre-trial hearing to make that determination as a matter of law is consistent with the purpose behind CrL § 2-202(a)(3); moreover, a pre-trial hearing is, in Petitioner's words, "efficient, practical and would save time, money and effort later if the death penalty could not be applied." The State countered that CrL § 2-202(a)(3) does not contemplate a pre-trial evidentiary hearing.
The Circuit Court agreed with the State and orally denied Petitioner's request for a hearing. The court noted that "[t]here is no suggestion" in CrL § 2-202(a)(3) or "in logic" directing the court to decide "ahead of time" whether the State can present DNA evidence linking Petitioner to the crime; rather, "the sentencing authority... has to make that decision."
This pre-trial ruling of the Circuit Court forms the basis of this appeal.
We do not reach the merits of the Circuit Court's pre-trial ruling denying Petitioner his requested hearing because that
"In Maryland, appellate jurisdiction, except as constitutionally created, is statutorily granted." Schuele v. Case Handyman, LLC, 412 Md. 555, 565, 989 A.2d 210, 215 (2010). The general rule is that an appeal will lie only from a final judgment. See Md.Code (1974, 2006 Repl. Vol.), § 12-301 of the Courts and Judicial Proceedings Article ("CP") (authorizing appeals from "a final judgment entered in a civil or criminal case"). In a criminal case, "no final judgment exists until after conviction and sentence has been determined, or, in other words, when only the execution of the judgment remains." Harris v. State, 420 Md. 300, 22 A.3d 886 (2011) (quoting Sigma Reprod. Health Ctr. v. State, 297 Md. 660, 665, 467 A.2d 483, 485 (1983)).
Petitioner does not contend that the present appeal is from a final judgment and indeed it is not, as the case remains active in the Circuit Court. Neither does he contend that there is any other statutory right of appeal from this obviously interlocutory ruling. Petitioner argues, instead, that the ruling of the Circuit Court comes within what is known as the "collateral order doctrine."
Maryland's collateral order doctrine has its roots in the important policy underlying the final judgment rule, which is to "prevent piecemeal appeals and ... the interruption of ongoing judicial proceedings." Sigma Reprod. Health Ctr., 297 Md. at 665, 467 A.2d at 485. The doctrine "is very limited," Walker v. State, 392 Md. 1, 15, 895 A.2d 1024, 1033 (2006), and permits the immediate appeal of only a "narrow class of orders" that are "offshoots of the principal litigation in which they are issued" and are considered "final judgments without regard to the posture of the case," Jackson v. State, 358 Md. 259, 266-67, 747 A.2d 1199, 1203 (2000) (internal quotation marks and citation omitted). To come within the collateral order doctrine, the order sought to be reviewed must be one that:
In re Foley, 373 Md. 627, 633, 820 A.2d 587, 591 (2003) (quoting Pittsburgh Corning Corp. v. James, 353 Md. 657, 660-61, 728 A.2d 210, 211-12 (1999)). The four requirements "are conjunctive in nature" and each must be satisfied in order for a prejudgment order to constitute a collateral order. In re Franklin P., 366 Md. 306, 327, 783 A.2d 673, 686 (2001); see also Jackson, 358 Md. at 267, 747 A.2d at 1203. All four requirements "are very strictly applied, and appeals under the doctrine may be entertained only in extraordinary circumstances." Foley, 373 Md. at 634, 820 A.2d at 591 (collecting cases in which this Court has dismissed appeals for failing to satisfy all four requirements of the collateral order doctrine).
The State contends that the pre-trial ruling at issue here does not satisfy any, much less all, of the four requirements of the collateral order doctrine. It is unnecessary, though, to consider whether the court's denial of the requested pre-trial evidentiary hearing would conclusively determine a disputed question or resolve an important issue (the first two requirements of the collateral order doctrine), because the ruling at issue does not satisfy the third and fourth requirements. See Bunting v. State, 312 Md. 472, 477, 540 A.2d 805, 807 (1988) (per curiam) (declining
We begin with the third requirement of the collateral order doctrine—that the order appealed from is completely collateral to and separate from the merits of the underlying case. Petitioner sought a pre-trial determination, upon a full evidentiary hearing, of whether the State possesses DNA evidence sufficient to link him to the murder of Correctional Officer McGuinn. Far from being "completely separate from" the case that is yet to be tried, the evidence sought at the requested pre-trial hearing not only is intimately tied to whether Petitioner is guilty of the charged murder, but is particularly pertinent, if he is found guilty of the crime, to whether he is subject to imposition of the death sentence.
The ruling at issue here is much like a ruling denying a motion to dismiss a charging document on the ground that the prosecution violates the Sixth Amendment right to a speedy trial. The Supreme Court has held that the latter ruling is not subject to an immediate appeal under the collateral order doctrine, because, inter alia, such rulings "necessitate[ ] a careful assessment of the particular facts of the case[ ]" and "are best considered only after the relevant facts have been developed at trial." United States v. MacDonald, 435 U.S. 850, 858, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978). We have held likewise. See Stewart v. State, 282 Md. 557, 571-72, 386 A.2d 1206, 1213 (1978) (applying MacDonald to hold that no immediate appeal will lie from an order denying a Maryland defendant's motion to dismiss for a speedy trial violation, under either the federal Constitution or Article 21 of the Maryland Constitution).
It is equally obvious that the Circuit Court's pre-trial ruling does not satisfy the fourth requirement of the collateral order doctrine—that the order would be effectively unreviewable if appellate review was delayed until after final judgment. We have explained that this requirement is met in "`very few [and] extraordinary situations. Otherwise, ... there would be a proliferation of appeals under the collateral order doctrine.'" Foley, 373 Md. at 636, 820 A.2d at 593 (quoting Bunting, 312 Md. at 482, 540 A.2d at 809).
By its plain language, CrL § 2-202(a)(3) bars the imposition of the death penalty without the State having first presented to the jury or court evidence of at least one of the death penalty eligibility criteria listed in subsection (a)(3). Petitioner's right to insist upon compliance with the statute will not be hindered or undermined by awaiting final judgment to secure appellate review
For all the reasons we have discussed, we reject Petitioner's attempt to draw an analogy between the right afforded by CrL § 2-202(a)(3) and the protection afforded criminal defendants under the Double Jeopardy Clause. The right to an immediate appeal from the denial of a motion to dismiss a charging document on the ground that it was brought in violation of double jeopardy principles lies in the "serious risk of irreparable loss of the claimed right if appellate review is deferred until after final judgment."
We explained in Parrott why the distinction between the rights accorded under the double-jeopardy and speedy-trial clauses dictates the different outcomes in a collateral-order-doctrine analysis:
Id. at 425, 483 A.2d at 75 (quoting MacDonald, 435 U.S. at 860 n. 7, 98 S.Ct. 1547).
Petitioner argues that CrL § 2-202(a)(3) grants criminal defendants the guarantee against having to "run the gauntlet" of a capital trial without a pre-trial determination of whether at least one of the three death penalty eligibility criteria set forth in that subsection can be satisfied. It follows, argues Petitioner, that delay of appellate review of the denial of pre-trial consideration of such a claim until after conviction and sentencing would render the ruling effectively unreviewable, because, at that point, he would have endured the very capital trial that he believes CrL § 2-202(a)(3) is designed to prevent.
CrL § 2-202(a)(3) does not grant a defendant the right not to endure a capital trial. Rather, the subsection grants a defendant the right not to have the death penalty imposed, upon a finding of guilt of
Id. at 425, 483 A.2d at 75 (quoting MacDonald, 435 U.S. at 860 n. 7, 98 S.Ct. 1547). This or similar analysis has led us to reject the claim that the denial of a removal under art. IV is immediately appealable, and to hold that the "grant or denial" of such removal "is not within that narrow class of cases excepted from the final judgment requirement." See id., 483 A.2d at 75; see also Bunting, 312 Md. at 478, 540 A.2d at 807 (upholding the Court of Special Appeals' dismissal of the defendant's immediate appeal from an adverse ruling brought under the Interstate Agreement on Detainers, and in doing so, rejecting the defendant's argument that, "[b]y analogy to the double jeopardy cases," the Interstate Agreement "prescribes the remedy of dismissal for violations of the single transfer rule," giving him "a right not to stand trial"); accord United States v. Hollywood Motor Car Co., 458 U.S. 263, 270, 102 S.Ct. 3081, 73 L.Ed.2d 754 (1982) (stating that the collateral order doctrine does not embrace an order declining to dismiss an indictment on the ground of prosecutorial vindictiveness because it "is simply not [a right] that must be upheld prior to trial if it is to be enjoyed at all").
Only in the rarest of circumstances do we indulge a contention that an asserted right includes the right to avoid trial altogether, such that it would be effectively unreviewable on appeal from final judgment. We made the point in Bunting:
Bunting, 312 Md. at 479-80, 540 A.2d at 808 (internal citations omitted) (emphasis added).
We have not retreated from this pronouncement in Bunting. See, e.g., Dawkins v. Baltimore City Police Dept., 376 Md. 53, 61, 827 A.2d 115, 119 (2003) (discussing Bunting and holding that interlocutory trial court orders rejecting defenses of common law sovereign immunity, governmental immunity, public official immunity, statutory immunity, or any other type of immunity, generally do not come within the collateral order doctrine); Pittsburgh Corning, 353 Md. at 666, 728 A.2d at 214 ("As we pointed out in Bunting and confirmed in Shoemaker [v. Smith, 353 Md. 143, 725 A.2d 549 (1999)], the proffered
In sum, given the nature and purpose of CrL § 2-202(a)(3), "[t]he justification for immediate appeal [is not] sufficiently strong to overcome the usual benefits of deferring appeal until litigation concludes." Mohawk Indus., Inc. v. Carpenter, 558 U.S. ___, 130 S.Ct. 599, 605, 175 L.Ed.2d 458 (2009). We hold that post-judgment appeals will suffice to ensure fulfillment of the protections afforded criminal defendants by CrL § 2-202(a)(3). Accordingly, consistent with our order dated April 20, 2011, the appeal is dismissed.