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State v. Broberg6/11/1996
to offer a 'glimpse of the life [which the defendant] chose to extinguish,'" and that, "in the non-homicide context, the jury is introduced to the victim because often times, the victim testifies. Such is not the case with a homicide victim." (Id. at 3-4). The State specifically relied on the Maryland statutes and the constitutional provision relating to victim impact evidence and "the importance of fair treatment and representation of a victim during a criminal trial." (Id. at 4). The State characterized the issue which it was presenting as "a novel issue."
This Court, believing that the State had presented an issue of public importance, granted the State's petition. There was no cross-petition in this case. Furthermore, our order granting the certiorari petition did not add an issue or change the issue presented by the State. Today, however, the majority does not resolve the important question which prompted the Court to take the case. Instead, the majority reaches an issue not raised in the certiorari petition; it overturns a holding by the Court of Special Appeals which was not challenged in this Court.
The majority asserts that the question of whether the photographs were admissible on the ground that they were relevant to identity was raised in the State's certiorari petition because the State "also argued" in the petition that the photographs "were relevant and because their probative value was not outweighed by the potential prejudicial effect." (Slip opinion at 3, n.2). The State's reference to "relevant" in its certiorari petition had nothing to do with "identity." Rather, as previously explained, the State argued that the photographs were relevant so as to allow the jury to become better acquainted with the victim. The weighing of probative value against the likelihood of unfair prejudicial effect is a consideration with regard to almost all evidence issues. See 1 Wigmore, Evidence, § 10a, at 674 (1983); McLain, Maryland Evidence, § 403.1, at 297 (1987). Once it is determined that evidence is admissible under some principle of evidence law, ordinarily a trial judge has the discretion to exclude it if the judge determines that the probative value is outweighed by the unfair prejudicial effect. The State's argument in its certiorari petition was that the relevancy and probative value of the evidence to "humanize" and acquaint the jury with the homicide victim was not outweighed by an unfair prejudicial effect.
Under the majority's reasoning, whenever a petitioner uses the words "relevancy" and "prejudicial effect," the petitioner has thereby raised virtually any issue that might exist in the entire field of the law of evidence. The issue of whether the photographs were admissible because they were relevant to the element of identity in the homicide offense, and the issue of whether the photographs were admissible because they allowed the jury to become acquainted with the homicide victim in the same way that the jury is acquainted with a victim in a non-homicide case, are clearly separate and distinct issues. The State's certiorari petition raised only the latter issue; the majority decides only the former issue.
For more than twenty years, since the time when this Court's jurisdiction became largely dependent upon the issuance of a writ of certiorari, we have consistently held that, in a case decided by an intermediate appellate court, we shall not consider an issue unless it was raised in a certiorari petition, a cross-petition, or the order by this Court granting certiorari.
Recently, in Am. Motorists Ins. Co. v. Artra Group, Inc., 338 Md. 560, 568-569, 659 A.2d 1295, 1299 (1995), with regard to an issue not raised in a certiorari petition o
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