State v. Adams

958 A.2d 295, 406 Md. 240, 2008 Md. LEXIS 579

• Court: Court of Appeals of Maryland
• Decided: October 15, 2008
• Docket: 38 September Term., 2007
• Status: Published

Opinions

HARRELL, J.

I.

Facts & Process

On the night of 17 February 1979, Kathy P.¹ and her sister, Teresa B., were walking to their car in the parking lot of the Prince George’s Motor Lodge, after leaving the Cuckoo’s Nest, a nearby bar. The Motor Lodge and the bar are in Prince George’s County. A van approached and cornered the women between several parked cars. Three men got out of the van. One of them, later identified as Raymond Leon Adams, was carrying a gun. Adams, threatening to shoot the women, ordered them to get into the van. Adams grabbed Kathy P., struck her over her head, and, together with other men, pushed her into the van. The vehicle, with Kathy P. inside, sped off on Branch Avenue in the direction of the District of Columbia. Adams drove the van. It was stipulated at trial that it is between a mile and a mile and a half from the Prince George’s Motor Lodge to the District of Columbia border.

Shortly after being forced into the van, Kathy P, was ordered to remove her jewelry and forcibly stripped of her clothing. One of the other male occupants in the van, later identified as William Raleigh Knight, raped her at gunpoint within minutes of the abduction.² Shortly after the first rape, the van turned right off of Branch Avenue and went the wrong way on a one-way street. The van was involved in a minor accident with another vehicle. Kathy P. then endured a series of sexual attacks and rapes by several men. She estimated that approximately fifteen minutes elapsed between the kidnapping and this series of sexual attacks.³ Kathy P. said she asked her abductors whether they were still in Maryland. They responded that they were in Maryland, however, she testified that she did not believe them because they laughed while responding. Just over two hours after the abduction, Kathy P. was pushed out of the van in Prince George’s County, Maryland. She knocked on the door of a nearby apartment and was able to contact the Prince George’s County Police for assistance. Teresa B. identified the driver of the van as Adams and also identified the passenger in the van as William Raleigh Knight. Kathy P. identified Adams in a photo array shortly after the attack, as well as again several days later and yet again at trial. Adams also was identified by a District of Columbia police officer who stopped Adams while he was driving a van matching the description of the van used in the abduction and attacks. A search of the van revealed three used prophylactics, and a scarf and comb belonging to Kathy P. It was stipulated at trial that Kathy P. suffered physical injuries consistent with a sexual assault.

Adams was charged with kidnapping, robbery with a deadly weapon, six counts of first degree rape, and three counts -of first degree sex offense. At his 1979 trial in the Circuit Court for Prince George’s County, Adams contended that the rapes occurred outside the State of Maryland, and thus Maryland did not have jurisdiction to try him for the crimes. The State presented two counter-arguments. First, the State contended that the evidence showed that the rapes, in fact, did occur in Maryland. Second, the State argued that, even assuming that the rapes occurred in the District of Columbia, the State could assert jurisdiction under Maryland Code (1957, 1971 Repl.Vol.), Article 27, § 465. Section 465 stated:

If a person is transported by any means, with the intent to violate this subheading [sexual offenses] and the intent is followed by actual violation of this subheading, the defendant may be tried in the appropriate court within whose jurisdiction the county lies where the transportation was offered, solicited, begun, continued or ended.

Maryland Code (1957, 1971 Repl-Vol.) Article 27, § 465.

Adams retorted that § 465 addressed the matter of venue, not the territorial jurisdiction, of a particular court.⁴ Adams further contended that Maryland had “no authority to legislate itself into having jurisdiction over acts that do not occur within the State.” After several lengthy discussions of jurisdiction at different stages of the trial, the trial court denied Adams’s motions and ruled that the question would be submitted to the jury. At that point, the following discussion took place:

Court: ... I think I am going to solve this problem very easily. I am going to instruct on the statute, and also add the question to be decided by the jury where all these acts took place. At this time I may agree with [the State’s Attorney]. Maybe at a later time I may disagree with you. If the jury can make a finding it might solve a lot of problems, if this case went to the Court of Appeals or the Court of Special Appeals and there was a specific finding in that regard by the jury.

Defense Counsel: Your Honor, I hate to interrupt the Court, but I think this is the very issue we addressed earlier.

Court: Yes.

Defense Counsel: The State has not shown anything upon which the jury can make that determination. And that is why I submit to the Court that this should not be passed to the jury.

Court: ... [A]ll that I know is that the intent started out in a Prince George’s County motel. All I have in front of me at this time is that is where it started. I have testimony from [Kathy P.] that sexual assaults were inflicted on her while the van was in motion, and that subsequent sexual assaults were inflicted on her at various places, and she was told they were in Maryland. Whether she believed what they told her or she didn’t believe that makes no difference. Nobody has told me that this incident didn’t occur in the State of Maryland. There is no evidence in this case at all that this didn’t occur in Maryland, at this juncture. And if somebody does testify that they occurred in the District of Columbia that then becomes in my judgment a factual issue that a jury then can make a determination on.

At this juncture all that I know is it started out and it occurred in Maryland, and that is all I have in front of me. If someone gets up and says it occurred elsewhere I think that it is perfectly reasonable to let a jury make a — that is one of the issues a jury may have to determine.

If this case is ever appealed, or he is convicted and I make a subsequent ruling the statute applies out of state, and the Court of Appeals says I am wrong, or the jury says that it did happen in the District and I am wrong, that ends it right then and there.

Do you [to the State’s Attorney] think that is a solution?

State’s Attorney: I don’t really know. It is a good procedure to get the jury to come back with specific findings of fact in a case like this, obviously, if this case is appealed to the Court of Appeals.

Court: How would the Court of Appeals know how the jury made a determination, based on what you told me? In other words, you want me to instruct them on the statute?

State’s Attorney: Yes, sir.

Court: That if this defendant formed the intention to commit a sexual assault on this lady, and he formed that intention in the State of Maryland, and they so find, the fact that it happened in the District of Columbia makes no difference, that it could happen anywhere as long as he formed that intention, that is what you say the purpose of the statute is?

State’s Attorney: That is correct, your Honor.

Court: All right. If they find it happened in the District.

Now suppose I agree with you and say you are absolutely right in your interpretation, then this case goes to the Court of Appeals and the Court of Appeals says this is not the law, didn’t have any jurisdiction because it happened — they don’t really know where it happened. How does the Court of Appeals know where it happened?

State’s Attorney: Well, I guess they don’t. I really don’t think there is any reason for the statute to exist—

Court: You don’t think there is any reason for the statute to exist other than this? You may be absolutely right. You don’t want to submit it to the jury on special issue as to this, but you want them instructed that—

States Attorney: Special Instruction as to the statute.

Court: Well all right. But you think the statute is applicable. All right.

State’s Attorney: Yes, sir.

Court: Do you [to Defense Counsel] agree with that, there should be a special issue before the jury as to where this sexual act occurred?

Defense Counsel: Assuming that the Court is ruling that this issue goes to the jury—

Court: Yes, that is a pretty good assumption at this time.

Defense Counsel: I understand that your Honor.

Court: All right.

Defense Counsel: I would submit that the Court’s proposed method is the better method, and I would ask the Court to do that, to get a specific finding as to whether or not the incidents involving the sexual acts and the rapes took place in the District of Columbia or Maryland.

Court: All of them?

Defense Counsel: Assuming all of them go to the jury, your Honor, I would assume those questions would have to be answered definitely. I think the jury does have to find—

Court: Let’s assume I do it that way, what is the burden of proof on that issue?

Defense Counsel: It is the same as the burden for any other—

Court: Anything else? You have to be convinced beyond a reasonable doubt?

Defense Counsel: Yes, your Honor.

Court: Do you agree with that [to State’s Attorney]?

State’s Attorney: If the Court submits that special issue?

Court: Yes.

State’s Attorney: Yes, sir.

Court: All right.

The trial court proposed a special verdict sheet which included asking the jury whether it found jurisdiction, proven beyond a reasonable doubt, based upon the rapes occurring in Maryland or the application § 465. Adams objected, arguing that there was insufficient evidence for the jury to find that the rapes occurred in Maryland. The judge ruled that the evidence was sufficient to send the issue to the jury. Adams then agreed to the special verdict sheet proposed by the trial court.⁵

Accordingly, the trial court gave the jury the following pertinent jury instructions regarding the special verdict sheet:

[You] will make a determination as to each one of these 12 charges, and they are numbered for your benefit, and you will find the defendant either not guilty or guilty of each one. And below that finding, if you find the defendant is guilty, you will also make a finding that the offense either occurred in Maryland or that jurisdiction was obtained in this case under Article 17, 465, of our Annotated Code, which I will tell you about later.

The judge later elaborated on the special verdict question available as to each of the individual counts. For example, he instructed the jury as follows:

Now, when you make that determination or if you make a determination as to first degree rape you will also make a determination as to where this rape occurred, and you will see there is a place for you to check either that the rape occurred in our State or that jurisdiction was obtained under Article 27, Section 465 of our Annotated Code. And our Legislature has enacted a statute that says in regards to sexual offenses if a person is transported by any means with intent to violate this subheading, meaning sexual offenses, and the intent is followed by actual violation of this subheading, the defendant may be tried in the appropriate court within whose jurisdiction the county lies where the transportation was offered, solicited, begun, continued, or ended.

If you find that the application of this statute is how this particular sex offense occurred you will check that, if you are not convinced beyond a reasonable doubt that the offense occurred in our state.

In a final reminder to the jury after closing arguments, the trial judge noted, “And also that in regard to both the rape and sexual charges you must determine whether it occurred in Maryland or whether there was jurisdiction under the statute. All right.”

The trial court also gave “advisory” jury instructions, based on Article 23 of the Maryland Declaration of Rights.⁶ Throughout the twenty pages of instructions read to the jury, the trial judge made repeated references to the “advisory” nature of his instructions. For example, he stated: Those of you who have sat previously as jurors in a criminal case know, and for those of you who have not sat previously and who do not know, that in our State, unlike [forty-eight] other states in our country, in a criminal case you as the jury sit not only as what we call the triers of fact, you also sit as what we call the judge of the law. And what this means, in essence, is that the facts in this case as you have sat and listened to for the past five days will be as you find them to be, and the law in this case will be as you find it to be. And because you are both the judges of the fact and the judges of the law anything that I may now tell you about either the facts or the law is purely advisory. You may disregard anything that I tell you, and you may pay absolutely no attention to what I tell you concerning either the facts or the law, with this one admonition concerning the law. You are not to apply the law as you think it ought to be or what it should be, but what it in fact is in this particular case.

And because you are the judges of the law [the State’s Attorney] and [Adams’s trial counsel] in their closing arguments to you may tell you what they think the law is in our State and how you should apply it in this particular case.

I, therefore, instruct you in an advisory capacity that in this case that you will sit on, that is of a criminal nature, the law places the burden on the State of Maryland to prove that the defendant, and in this case [Adams] is guilty beyond what we call a reasonable doubt. No defendant in any criminal case has to prove he is innocent. Accordingly, you will assume that [Adams] is innocent unless you are convinced from all the evidence in this case that you have heard for the past five days that he is guilty.

The trial court alluded to the advisory nature of the instructions at least ten times in the course of delivering the charge to the jury. Adams did not object to the references to the advisory nature of the jury instruction, despite their prominence in the charge to the jury.⁷

On 7 December 1979, the jury found Adams guilty on all twelve counts. In addition, the jury made a special finding that all twelve counts occurred within the State of Maryland. Although the option was available on the verdict sheet, the jury did not check the option finding “jurisdiction” under Article 27, § 465. Adams was sentenced to one life term for one count of first degree rape, multiple concurrent life sentences for the remaining rapes and sexual assaults, thirty consecutive years of imprisonment for kidnapping, and twenty consecutive years for robbery.

Adams appealed to the Court of Special Appeals. He raised eight issues.⁸ In an unreported opinion filed in 1980, the intermediate appellate court affirmed Adams’s conviction. We denied Adams’s Petition for Writ of Certiorari from that judgment. Adams v. State, 289 Md. 738 (1980).

On 1 April 2004, some twenty-four years after his convictions and affirmance thereof on direct appeal, Adams filed in the Circuit Court for Prince George’s County an initial Petition for Post Conviction Relief. The Petition alleged four bases for relief: (1) the trial court improperly gave only advisory jury instructions; (2) the trial court improperly instructed the jury on jurisdiction; (3) the trial court gave an incomplete reasonable doubt instruction; and (4) Adams’s trial counsel was ineffective. In support of his claim of ineffective assistance of counsel, Adams alleged that his attorney failed to object to the improper jurisdiction and reasonable doubt instructions and failed to file a Motion for Modification of Sentence. The post-conviction court granted the Petition on the grounds that the advisory jury instructions and the jury instructions on jurisdiction were improper.⁹ The Court also granted the Petition based on the ineffective assistance of counsel, specifically Adams’s trial counsel’s failure to object to the assertedly erroneous jurisdiction instructions.¹⁰

The Court of Special Appeals, on the State’s appeal, affirmed the post-conviction Court in a reported opinion. State v. Adams, 171 Md.App. 668, 912 A.2d 16 (2006). We granted the State’s Petition for Writ of Certiorari. State v. Adams, 899 Md. 595, 925 A.2d 634 (2007). The State presents three questions for our consideration:

(1) Under the Maryland Post Conviction Procedure Act, has Adams waived his post conviction complaint that the trial court’s advisory jury instructions denied him his constitutional right to due process?

(2) Under the Maryland Post Conviction Procedure Act, has Adams waived his right to challenge an instruction advising the jury that it could find jurisdiction under § 465 of Article 27 and, if not waived, in light of the special verdict in this case, was the instruction harmless?

(3) Did the post conviction court err in concluding that Adams’s counsel’s performance was deficient because counsel failed to object to the court’s instructions on jurisdiction as counsel’s failure to object to the instructions was not error and, in any event, was Adams prejudiced?

II.

Standard of Review

We “will not disturb the factual findings of the post-conviction court unless they are clearly erroneous.” Wilson v. State, 363 Md. 333, 348, 768 A.2d 675, 683 (2001) (citing Oken v. State, 343 Md. 256, 299, 681 A.2d 30, 51 (1996)); Gilliam v. State, 331 Md. 651, 672, 629 A.2d 685, 696 (1993)). Although reviewing factual determinations of the post-conviction court under a clearly erroneous standard, we make an independent determination of relevant law and its application to the facts. Gray v. State, 388 Md. 366, 375, 879 A.2d 1064, 1068 (2005); State v. Peterson, 158 Md.App. 558, 584, 857 A.2d 1132, 1147 (2004).

III.

Stare Decisis

Adams’s flagship contention is that the advisory jury instructions employed at his trial violated the reasoning iterated by this Court in Stevenson v. State, 289 Md. 167, 423 A.2d 558 (1980) , and Montgomery v. State, 292 Md. 84, 437 A.2d 654 (1981) . Adams’s facially reasonable argument, however, suffers from a fundamental flaw. The holdings in Stevenson and Montgomery, by their express terms, did not announce new law.

In Stevenson, a defendant challenged her conviction for first degree murder on the ground that Article 23 of the Maryland Declaration of Rights violated the Due Process Clause of the Fourteenth Amendment and the Sixth Amendment right to a trial by jury. At Stevenson’s trial, the trial court gave broad advisory instructions, much like the advisory instructions given in the present case. Stevenson, however, narrowly objected only to the constitutionality of Article 23, failing to object that the broad advisory instructions given at her trial exceeded the scope of Article 23. In essence, Stevenson mounted a facial challenge to the constitutionality of Article 23. The Court of Appeals affirmed Stevenson’s conviction because, although the broad advisory instructions violated the scope of Article 23,¹¹ a proper application of Article 23 would not violate the Federal Constitution. Thus, Article 23 was not facially unconstitutional.

The Court majority opinion¹² noted that “[ijmplicit in the decisions of this Court limiting the jury’s judicial role to the ‘law of the crime’ is a recognition that all other legal issues are for the judge alone to decide.” Stevenson, 289 Md. at 179, 423 A.2d at 565. By its terms, Stevenson purported to express the limitations on the power of the jury implicit in earlier Maryland appellate decisions. See, e.g., Lewis v. State, 285 Md. 705, 724, 404 A.2d 1073, 1083 (1979); Vogel v. State, 163 Md. 267, 272, 162 A. 705, 708 (1932); Bell, alias Kimball v. State, 57 Md. 108, 120 (1881); Wheeler v. State, 42 Md. 563, 570 (1875). “Rather, the Stevenson court is clear that it did not make new law, but rather it merely clarified what has always been the law in Maryland.” Jenkins v. Smith, 38 F.Supp.2d 417, 421 (D.Md.1999), aff'd, Jenkins v. Hutchinson, 221 F.3d 679, 684 (4th Cir.2000).¹³ The Stevenson Court pointed out that “this Court has consistently interpreted this constitutional provision as restraining the jury’s law deciding power to this limited, albeit important, area.” Stevenson, 289 Md. at 178, 423 A.2d at 564. The majority opinion highlighted, as an example, a then recent decision applying the long established principle that the jury serves only as a judge of the “law of the crime.” See Lewis v. State, 285 Md. 705, 724, 404 A.2d 1073, 1083 (1979) (holding that instructions on the voluntariness of confessions are binding, not merely advisory, on the jury, and the jury should be instructed as such).

Because Stevenson did not announce a new rule and Adams waived any challenges based thereon, there is no need to consider retrospectivity here. See Guardino v. State, 50 Md.App. 695, 702 n. 3, 440 A.2d 1101, 1105 n. 3 (1982) (“No retrospective question was presented by Stevenson v. State, 289 Md. 167, 423 A.2d 558 (1980) because it merely affirmed what it found to be long established law with respect to the law-judging function of the jury.”); Prokopis v. State, 49 Md.App. 531, 535, 433 A.2d 1191, 1194 (1981) (“Applicant acknowledges that Stevenson v. State ... is not retroactive.”).

Montgomery clarified the decision in Stevenson. In Montgomery, the defendant was charged with assault with intent to rob. The trial court gave broad advisory instructions similar to the instructions in the present case. We reversed the conviction, holding that because “there was no dispute between the-State and Montgomery as to the law of the crime, the trial judge’s instruction-thereon was binding. . . .” Montgomery, 292 Md. at 89, 437 A.2d at 657. We also noted that instructions on matters such as reasonable doubt, the burden of proof, the prohibition on an adverse inference from a defendant’s silence, and the Jury’s restriction to considering only the evidence before them, were always binding on the jury because they were not part of the “law of the crime.” Furthermore, in “those circumstances where there is no dispute nor a sound basis for a dispute as to the law of the crime, the court’s instructions are binding on the jury. . . .” Montgomery, 292 Md. at 89, 437 A.2d at 657.¹⁴

Just as Stevenson purported to explain and continue the reasoning of prior decisions of the Court of Appeals, Montgomery merely served as an example and application of Stevenson. See Guardino, 50 Md.App. at 701-02, 440 A.2d at 1105 (“Unlike Stevenson, Montgomery did not specifically state nor demonstrate that its doctrine was reflected in the prior decisions of the Court. But it is silent as to its retroactive effect. As it serves to explicate Stevenson, we assume that its teachings, no less than Stevenson’s, are an affirmation of prior decisions, in accord with established law consistently followed by the Court of Appeals. . . .”).¹⁵

We shall not here disturb the holdings of Montgomery and Stevenson. “Stare decisis, which means to stand by the thing decided, ‘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. County, 384 Md. 1, 14, 862 A.2d 33, 40-41 (2004) (quoting Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 2609, 115 L.Ed.2d 720 (1991)). “We are cognizant of the importance of stare decisis and the resulting certainty, definition, and dependability it gives the law.” Willey v. State, 328 Md. 126, 137, 613 A.2d 956, 961 (1992) (quoting B & K Rentals v. Universal Leaf, 324 Md. 147, 158, 596 A.2d 640, 645 (1991)).

The inertial and institutional devotion to stare decisis is not absolute, however, for we will strike down a decision that is “clearly wrong and contrary to established principles.” Townsend v. Bethlehem-Fairfield Shipyard, 186 Md. 406, 417, 47 A.2d 365, 370 (1946); Bozman v. Bozman, 376 Md. 461, 494, 830 A.2d 450, 470 (2003). The Supreme Court of the United States notes that “it is common wisdom that the rule of stare decisis” is not an “ ‘inexorable command.’ ” Planned Parenthood v. Casey, 505 U.S. 833, 854, 112 S.Ct. 2791, 2808, 120 L.Ed.2d 674 (1992). Nevertheless, in the present case, we are unpersuaded that either Stevenson or Montgomery was held wrongly to be applied in a prospective manner only. In Stevenson, the Court considered the history of Article 23 of the Maryland Declaration of Rights and concluded that prior decisions of the Court of Appeals reined in the power of the jury to the extent that only its decisions regarding the “law of the crime” in “dubious factual situations” were a proper exercise of Article 23. Dillon v. State, 277 Md. 571, 581, 357 A.2d 360, 367 (1976).¹⁶

Nonetheless, although we ordinarily would continue with our analysis because we have and will continue to reverse convictions where a defendant makes a timely objection to erroneous jury instructions, see, e.g., Davis v. State, 48 Md.App. 474, 427 A.2d 1085 (1981) (reversing conviction holding that timely objection at trial to “advisory” jury instructions prior to Stevenson preserved the error for review on the merits), our inquiry is truncated here because Adams waived many of his claims by not objecting at trial or on direct appeal.

IY.

Advisory Instructions

In his Petition for Post-Conviction Relief, Adams contended that the advisory instructions based on Article 23 of the Maryland Declaration of Rights violated his right to due process of law under the Fourteenth Amendment to the U.S. Constitution. The State peremptorily contends that Adams waived this challenge.¹⁷ We agree.

The Uniform Postconviction Procedure Act (“UPPA”) (Maryland Code (2001), Criminal Procedure Article, §§ 7-101 to 7-301)¹⁸ arguably provides the statutory framework for analysis of Adams’s current challenges to his convictions. Section 7-102 permits a challenge to a conviction where the post-conviction issue has “not been previously and finally litigated or waived in the proceeding resulting in the conviction or in any other proceeding that the person has taken to secure relief from the person’s conviction.” § 7-102(b)(2). An issue “is waived when a petitioner could have made but intelligently and knowingly failed to make the allegation.” § 7-106(b)(l)(i). Where a petitioner could have objected, but failed to make such an allegation of error, “there is a rebuttable presumption that the petitioner intelligently and knowingly failed to make the allegation.” § 7 — 106(b)(2). Section 7 — 106(b)(l)(ii) states that waiver shall be excused in special circumstances; however, “the petitioner has the burden of proving that special circumstances exist.”

In enacting the UPPA, “the legislature employed the concept of an intelligent and knowing waiver in the narrow sense employed by the Supreme Court in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).” McElroy v. State, 329 Md. 136, 140, 617 A.2d 1068, 1070 (1993) (citing Curtis v. State, 284 Md. 132, 395 A.2d 464 (1978)). In Curtis, we distinguished the minimum standards for waiver of a fundamental constitutional right from the standards for waiver of other rights. Curtis, 284 Md. at 148, 395 A.2d at 473. Fundamental constitutional rights require an affirmative waiver from a defendant. See, e.g., Johnson, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (requiring intentional relinquishment of a known right in order to effect waiver of right to counsel in federal criminal actions); Adams v. U.S. ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942) (requiring knowing and intelligent waiver of right to a jury trial). Non-fundamental rights may be waived without an affirmative acknowledgment of waiver by the defendant to the court. “It is clear that a ‘procedural default’ in certain circumstances, even where a defendant may personally have been without knowledge or understanding of the matter, may result in his being precluded from asserting important rights.” Curtis, 284 Md. at 147, 395 A.2d at 472; see Hunt v. State, 345 Md. 122, 138, 691 A.2d 1255, 1263 (1997) (“ ‘[T]he waiver of other rights, which ordinarily do not require such knowing and voluntary action for a waiver to be effective, [is] not governed by the definition of waiver in the Post Conviction Procedure Act.’ ” (quoting Williams v. State, 292 Md. 201, 215-16, 438 A.2d 1301, 1308(1981))).

Our cases make it clear that, simply because an asserted right is derived from the Constitution of the United States or the Constitution of Maryland, or is regarded as a “fundamental” right, does not necessarily make the “intelligent and knowing” standard of waiver applicable. Rather, most rights, whether constitutional, statutory or common-law, may be waived by inaction or failure to adhere to legitimate procedural requirements.

State v. Rose, 345 Md. 238, 248, 691 A.2d 1314, 1319 (1997).

An erroneous jury instruction, even on reasonable doubt, is not such a fundamental right requiring an affirmative “knowing and intelligent” waiver under UPPA. See Bowman v. State, 337 Md. 65, 67, 650 A.2d 954, 955 (1994) (holding that “review of a jury instruction will not ordinarily be permitted unless the appellant has objected seasonably so as to allow the trial judge an opportunity to correct the deficiency before the jury retires to deliberate”); Foster, Evans & Huffington v. State, 305 Md. 306, 314 503 A.2d 1326, 1330 (1986) (noting that failing to object to erroneous jury instructions regarding the burden of proof, even in a capital case, constituted waiver); Hankerson v. North Carolina, 432 U.S. 233, 244 n. 8, 97 S.Ct. 2339, 2345 n. 8, 53 L.Ed.2d 306 (1977) (noting that states may enforce the “normal and valid rule that failure to object to a jury instruction is a waiver of any claim of error”); Cirincione v. State, 119 Md.App. 471, 512, 705 A.2d 96, 115-16 (1998) (“As the Court of Appeals reconfirmed ... the right to a correct jury instruction, even a jury instruction on the definition of reasonable doubt, is not a fundamental right ... [and] may be waived for post conviction purposes by a failure to object at trial.” (citing Rose, 345 Md. at 250, 691 A.2d at 1320)); Morris v. State, 153 Md.App. 480, 517, 837 A.2d 248, 269 (2003) (holding that challenge to erroneous jury instruction on reasonable doubt was waived by failure to object at trial); Trimble v. State, 321 Md. 248, 257, 582 A.2d 794, 798 (1990) (“The [instruction] issue is not ... a proper subject for review in this [post-conviction] proceeding because the issue of the instruction was not raised [previously] and was waived.”); State v. Tichnell, 306 Md. 428, 465-66, 509 A.2d 1179, 1198 (1986) (“[The circuit court] held that because there was no objection to the instruction, the issue was waived and thus not properly before the post conviction court.... [W]e agree with the court’s disposition of the issue.”); State v. Colvin, 314 Md. 1, 23, 548 A.2d 506, 517 (1988) (“holding that when a defendant failed to object to trial court’s advisory instructions after Stevenson, the defendant’s claims had been waived for the purposes of his post-conviction petition”).

We summarized the case law regarding waiver in this area in Walker v. State, 343 Md. 629, 644-45, 684 A.2d 429, 436-37 (1996):

[W]e are aware of no decision by the Supreme Court or this Court holding that waiver of an issue over the accuracy of a jury instruction concerning the elements of an offense requires intelligent and knowing action by the defendant himself____[A] multitude of cases in this Court[ ] make it clear that the failure to object to a jury instruction ordinarily constitutes a waiver of any later claim that the instruction was erroneous____

Furthermore, we have consistently held that the failure to object to or otherwise challenge a jury instruction constitutes a waiver of the issue for purposes of the Maryland Post Conviction Procedure Act. (Citations omitted).

This is true even of transparently erroneous jury instructions that appear to shift the burden of proof to a defendant. For example, in Davis v. State, 285 Md. 19, 400 A.2d 406 (1979), the trial court instructed the jury that “in order to prove an alibi conclusively, the testimony must cover the whole time in which the crime by any possibility might have been committed and it should be rigid, it should be subjected to rigid scrutiny.” Davis, 285 Md. at 21, 400 A.2d at 406 (1979). The State in Davis conceded that the jury instruction was erroneous in that it improperly shifted the burden of proof to the defendant. We held that the challenge to the jury instruction nonetheless was waived by the petitioner’s failure to object.

Similarly, in Rose, we considered an allegedly erroneous instruction regarding the burden of proof in a criminal action. We stated the “general rule is that the failure to object to a jury instruction at trial results in a waiver of any defects in the instruction, and normally precludes further review of any claim of error relating to the instruction.” Rose, 345 Md. at 245-46, 691 A.2d at 1317. Rose, however, argued that the subject reasonable doubt instruction was integral to a fair trial, and any errors in instructing the jury on reasonable doubt were “errors of a constitutional magnitude.” Rose, 345 Md. at 247, 691 A.2d at 1318. Therefore, Rose argued, a waiver of an error in a jury instruction regarding reasonable doubt required that the defendant knowingly and intelligently make the waiver. We expressly rejected Rose’s argument, holding that a claim of error as to a reasonable doubt instruction could be waived by a failure to object at trial.¹⁹

Applying these principles to the instant case, it is apparent that Adams’s claims regarding the erroneous jury instructions were waived. The most egregiously wrong jury instruction at his trial was the statement that the jury may disregard the proper burden of proof in criminal actions. As noted above, the trial court said to the jury, “in an advisory capacity that in this case that you will sit on, that is of a criminal nature, the law places the burden on the State of Maryland to prove that the defendant, and in this case [Adams] is guilty beyond what we call a reasonable doubt.” It is uncontested, however, that Adams did not challenge the instruction, either at trial or on direct appeal.²⁰ State v. Colvin, 314 Md. 1, 22-23, 548 A.2d 506, 516-17 (1988), is directly on point. There we stated:

When submitting guilt or innocence to the jury, the trial court instructed that art. 23 of the Maryland Declaration of Rights made the jury the judge of the law, and that as a result the court’s instructions were advisory only and not binding____

There were no exceptions taken to these instructions. On direct appeal when Colvin-El was represented by new counsel, the points were not presented. Under Md.Code (1957, 1987 Repl.Vol.), Art. 27, § 645A(c), part of the Post Conviction Procedure Act, failure to make the allegations is presumed to have been done intelligently and knowingly. Nothing is presented here to rebut the presumption.

Therefore, as was the fate of the defendants’ comparable arguments in Davis, Rose, Foster, Colvin, Cirincione, and Morris, Adams’s current challenges to the pertinent jury instructions were waived and mounting those challenges for the first time in a post-conviction proceeding will not support relief.

IV.

An Appeal to Our Discretion

At his trial, Adams raised no objection to the repeated description of the jury instructions as “advisory.” Adams makes no attempt to rebut any presumption that he knowingly waived his right to challenge the instructions.²¹ Rather, Adams contends that his failure to object is excused because “special circumstances” justify review of his conviction.²²

The dissent is correct in its contention that § 7-106 may not be applied to Adams’s excusable waiver argument regarding the advisory jury instructions. Dissent op. at 302, 958 A.2d at 332-33. The first case of this Court expressing what appears to be the modern view of the waiver section of the post-conviction statute makes clear that:

Consequently, we believe that the Legislature, when it spoke of “waiver” in subsection (c) of Art. 27, s 645A [now § 7—106(b) ], was using the term in a narrow sense. It intended that subsection (c), with its “intelligent and knowing” standard, be applicable only in those circumstances where the waiver concept of Johnson v. Zerbst and Fay v. Noia was applicable. Other situations are beyond the scope of subsection (c), to be governed by case law or any pertinent statutes or rules. Tactical decisions[²³] when made by an authorized competent attorney, as well as legitimate procedural requirements, will normally bind a criminal defendant.

Curtis v. State, 284 Md. 132, 149-150, 395 A.2d 464, 474 (1978) (Eldridge, J. writing for the Court) (emphasis added). Thus, Adams’s contentions, if reviewable in this proceeding at all, must be governed by caselaw or rule. As discussed above, the caselaw governing erroneous jury instruction challenges is clear. Any later imagined flaw in jury instructions ordinarily is waived by a failure to object at trial.

Further, the rules which permit an appellate court to notice “plain error” technically do not apply to post-conviction proceedings. As the Court noted in Walker: Rules 4-325(e) and 8-131(a), authorizing a court to take cognizance of “plain error” despite the waiver of an issue, literally apply only to direct appellate review of a judgment. Moreover, the similar “special circumstances” doctrine set forth in § 645A(c)(l) [now § 7—106(b)(1)(ii) ], authorizing a court in a post conviction action to excuse a waiver, is applicable only to situations encompassed by § 645A(c) [now § 7-106(b) ], i.e., situations requiring intelligent and knowing action before there is a waiver.

Walker v. State, 343 Md. 629, 647, 684 A.2d 429, 438 (1996).²⁴

Nonetheless, it is recognized that the Court of Appeals possesses discretion to excuse a waiver, outside of § 7-106, in a post-conviction proceeding. Apparently relying on Rule 8-131(a),²⁵ we have noted that, “[u]nder that rule, the appellate courts possess the discretion to excuse the waiver [in the trial] of a right or claim waivable by less than knowing and voluntary action.” Hunt v. State, 345 Md. 122, 139, 691 A.2d 1255, 1263. Similarly, in Oken v. State, 343 Md. 256, 273, 681 A.2d (1996), “we noted that, [u]nder Maryland Rule 8-131, this Court retains discretion to excuse a waiver [in a post-conviction proceeding].” This reliance on Rule 8-131 as the wellspring of appellate discretion to notice waiver in a post-conviction proceeding, independent of the explicit provisions of the Post-Conviction Act, has not been without its critics, however. The Court of Special Appeals summarized the “discovery” of this discretion:

The Court itself noted the uncertain origin of this authority to excuse, since waivers of non-fundamental rights are not governed by the Act and since Maryland’s rules of appellate procedure do not directly apply. [Walker ] at 647, 684 A.2d at 438. Although Maryland courts have recognized the distinction between waivers of fundamental and non-fundamental rights since 1978, the first time the Court of Appeals ever spoke of such an excusal was in Oken v. State, 343 Md. 256, 273-74, 681 A.2d 30, 38 (1996), when it claimed such discretion under Rule 8-131. Prior to that time, a finding of waiver had always been dispositive, and the Court of Appeals had gone so far as to hold that a waived claim was “not ... a proper subject for review in [a post conviction] proceeding.” Trimble v. State, 321 Md. 248, 257, 582 A.2d 794, 798 (1990). The Walker Court premised its discretion to excuse on Oken but also indicated some measure of reliance on Foster v. State, 305 Md. 306, 503 A.2d 1326 (1986), which was not a post conviction case. More recently, in Hunt v. State, 345 Md. 122, 152, 691 A.2d 1255, 1269 (1997), discretion to excuse was again based squarely on Rule 8-131. But see State v. Rose, 345 Md. 238, 250, 691 A.2d 1314, 1320 (1997) (reversing this Court’s grant of post conviction relief and remanding with instructions to affirm the circuit court’s denial without allowing for this Court to consider whether to excuse the petitioner’s waiver).

Cirincione v. State, 119 Md.App. 471, 513-515, 705 A.2d 96, 116-17 (1998)

Were we writing on a cleaner slate, revisiting the evolution and basis of this discretion might be a principled undertaking; however, like the summer rule of golf (“play the ball as you find it”), we shall save that endeavor for another day, if at all.²⁶ In the present case, the Circuit Court and Court of Special Appeals erroneously analyzed Adams’s waiver issue as if it was governed by § 7-106. As noted above, and pointed out by the dissent, § 7-106 does not apply strictly. Thus, if Adams’s waiver is to be excused, it must rest on the exercise of our discretion. For reasons to be explained, we shall not exercise our discretion to excuse Adams’s waiver.

Adams²⁷ contends that waiver should be excused in his ease because (1) the law at the time of his trial was clear that “advisory” instructions were permissible; (2) at the time of the trial there was a misconception by a large segment of the Maryland bench and bar regarding the scope and application of Article 28 of the Maryland Declaration of Rights; and (3) the erroneous jury instructions constitute “plain error.”

A.

Law at the Time of Trial

Adams contends, and the post-conviction court and the intermediate appellate court agreed, that “state law barred” a contemporaneous challenge to the jury instructions based on their being advisory. The use of the word “bar” is inappropriate in these circumstances.²⁸ A more accurate perception of Adams’s argument is that the settled law at the time of the trial sanctioned advisory jury instructions at Adams’s trial. Therefore, Adams argues, his failure to object, i.e., waiver, should be excused.

Adams points to the Supreme Court’s holding in Reed v. Ross, 468 U.S. 1, 16 104 S.Ct. 2901, 2910, 82 L.Ed.2d 1 (1984), that “where a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the claim in accordance with applicable state procedures.”²⁹ Adams’s argument fails because the objection that he could have presented at trial was not novel, under either Maryland or federal law. “[T]he question is not whether subsequent legal developments have made counsel’s task easier, but whether at the time of the default the claim was ‘available’ at all. Smith v. Murray, 477 U.S. 527, 537, 106 S.Ct. 2661, 2667, 91 L.Ed.2d 434 (1986). “The precise contours of the novelty exception to the procedural bar doctrine are not as clear as one might hope.” Poyner v. Murray, 964 F.2d 1404, 1424 (4th Cir.1992). A constitutional theory of objection is not novel when the debate has been percolating demonstrably for years. Pruett v. Thompson, 771 F.Supp. 1428, 1438 (E.D.Va.1991), aff'd, 996 F.2d 1560 (4th Cir.1993) (citing 17A Charles A. Wright, Arthur R. Miller & Edward. H. Cooper, Federal Practice & Procedure § 4266.1 at p. 460 n. 48 (1988)).

As noted above, Adams’s contention most worthy of consideration is that the advisory nature of the instructions improperly relieved the State of its burden to prove that Adams was guilty beyond a reasonable doubt. See Montgomery, 292 Md. , 437 A.2d at 658 (listing the burden of proof as the first bedrock characteristic “indispensable to the integrity of every criminal trial”). Adam’s argument fails, however, because an anticipatorily reasonable basis for an objection was available to Adams at trial. As discussed above, Stevenson merely articulated what had been implied for decades in the holdings of the Court of Appeals and other courts.

The constitutional requirement that the State prove all elements of a crime beyond a reasonable doubt was well established before Adams’s trial in 1979. In In re Winship, 397 U.S. 358, 361, 90 S.Ct. 1068, 1071, 25 L.Ed.2d 368 (1970), the Supreme Court held that the “requirement that guilt of a criminal charge be established by proof beyond a reasonable doubt dates at least from our early years as a Nation.” By all accounts, Winship was a landmark case and has been held to put defendants on notice of their right to require the State to carry the beyond a reasonable doubt burden. Compare Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982) (holding that a reasonable basis was available to counsel after Winship to challenge jury instruction on proper burdens, and thus waiver was unexcused) with Reed v. Ross, 468 U.S. 1, 19, 104 S.Ct. 2901, 2912, 82 L.Ed.2d 1 (1984) (holding that reasonable basis was not available to trial counsel to challenge jury instruction on proper burdens prior to Winship, thus waiver was excused by cause). “That the jury must be instructed that the Government is required to prove the defendant’s guilt ‘beyond a reasonable doubt’ was not an open question after Winship” Jenkins v. Hutchinson, 221 F.3d 679, 684 (4th Cir.2000); see also Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979) (“After Winship the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed but [also] to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.”).

The requirement that the jury be instructed properly regarding the proper burdens was well established at the time of Adams’s trial. In Cool v. U.S., 409 U.S. 100, 100, 93 S.Ct. 354, , 34 L.Ed.2d 335 (1972), the Supreme Court stated, “In this case, the court below held in effect that in a criminal trial, the jury may be instructed to ignore defense testimony unless it believes beyond a reasonable doubt that the testimony is true. That holding is fundamentally inconsistent with our prior decisions ... and must therefore be reversed.” The Court in Cool also noted that any instruction that “allow[edJ the jury to convict despite its failure to find guilt beyond a reasonable doubt” must be reversed. Cool, 409 U.S. at 103-04, 93 S.Ct. 354, 34 L.Ed.2d 335.³⁰

Maryland law was in accord with these federal precepts prior to Adams’s trial in 1979. In State v. Grady, 276 Md. 178, 182, 345 A.2d 436, 438 (1975), we held that “under the Federal Constitution, as well as the law of Maryland, the burden is on the State to prove all elements of the alleged crime and to do so beyond a reasonable doubt.” In 1971, in describing the jury as the “judges of the law” in the Maryland Constitution, the Court of Special Appeals noted, that “[i]t does not confer upon them, however, 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.” Hamilton v. State, 12 Md.App. 91, 98, 277 A.2d 460, 464 (1971), aff'd 265 Md. 256, 288 A.2d 885 (1972). That language was repeated in Dillon, 277 Md. 571, 581-82, 357 A.2d 360 (1976). “We expressly approved these principles in our affirmance of Hamilton.” Blackwell v. State, 278 Md. 466, 479, 365 A.2d 545, 553 (1976). Questions of law of a constitutional nature were always off limits to the jury. Giles v. State, 229 Md. 370, 183 A.2d 359 (1962); Franklin v. State, 12 Md. 236 (1858); Hitchcock v. State, 213 Md. 273, 131 A.2d 714 (1957). Commentators discussing Hamilton noted that “[cjlearly, the court’s pronouncement means that the jury’s role as judge of the law does not include judging the validity or merits of the law; nor does it diminish the judge’s authority to rule on the law applicable to the trial process itself.” Gary J. Jacobsohn, The Right to Disagree: Judges, Juries, and the Administration of Criminal Justice in Maryland, 1976 WASH. U.L.Q. 571, 578 (1976). In July 1979, months before Adams’s trial, the Court of Special Appeals noted that the “curious provision of the Maryland Constitution with respect to the jury’s being judges of the law has only meant that where there are conflicting interpretations of law, the jury may have both interpretations argued to it and the jury may choose between, and further that the jury shall decide whether the law should be applied in dubious factual situations.” Ehrlich v. State, 42 Md.App. 730, 737, 403 A.2d 371, 376 (1979) (emphasis added). The Court of Special Appeals continued, “In deciding which of two conflicting interpretations of law is correct and in deciding whether the law should apply in a dubious factual situation, the jury is still carrying out its sole mission of determining guilt or innocence. Overriding limitations still abide as to what a jury shall not hear (by way of evidence or argument) and what a jury shall not do. ” Ehrlich, 42 Md.App. at 737-38, 403 A.2d at 376 (emphasis added).

The duty of a juror had been delineated clearly in caselaw prior to Stevenson. See Hopkins v. State, 19 Md.App. 414, 420-21, 311 A.2d 483, 487 (1973) (“[W]hen one sits on a jury, he is required to accept and apply the law as the judge gives it to him, whether or not he agrees with it and no matter what his personal feelings are toward the parties in question.” (quoting United States v. Guzman, 337 F.Supp. 140 (S.D.N.Y.1972), aff'd, 468 F.2d 1245 (2d Cir.1972))); Neal v. State, 45 Md.App. 549, 556, 413 A.2d 1386, 1390 (1980) (“A jury in a criminal case has no greater prerogative as judge of the law than would the court have had sitting without a jury....”)

As discussed above, after Winship was decided in 1970, it was clearly established that the prosecution must prove all elements of a crime beyond a reasonable doubt. Prior to his trial, Adams, based upon Hamilton, Dillon, Ehrlich, and Hopkins reasonably could have been expected to be aware that any instruction that he perceived as permitting the jury to disregard such clearly established constitutional law was improper. It was not novel in 1979 for defense counsel to argue that the State was required to prove all elements of the crime beyond a reasonable doubt. It was similarly not novel for defense counsel to argue that the jury must be instructed that the State is required to prove all elements of the crime beyond a reasonable doubt.

Prior to Adams’s trial, this issue had been preserved at trial on several recent occasions for review in reported appellate cases. In Jones v. State, 29 Md.App. 182, 202, 348 A.2d 55, 67, (1975) , reversed on other grounds, 279 Md. 1, 367 A.2d 1, (1976) , attorney F. Lee Bailey requested that the trial court instruct the jury that

the instructions of the Court are the sole and exclusive source of the law and the jury may find the law from no other source than the instructions of the Court and that they are absolutely obligated to follow those instructions, particularly those of constitutional dimension; the most important of which [based on some unusual circumstances in the Jones case] in all the circumstances of this trial is the impermissible nature of drawing an inference from the silence of the Defendant.

Jones v. State, 29 Md.App. 182, 202 348 A.2d 55, 67 (1975), reversed on other grounds, 279 Md. 1, 367 A.2d 1 (1976). In his brief to the Court of Special Appeals, Bailey argued that “to allow juries to generally determine the law is to permit possible violations of criminal defendants’ rights which are guaranteed by the federal constitution and binding on the states through the fourteenth amendment.”

In Davis v. State, 48 Md.App. 474, 427 A.2d 1085 (1981), the defendants objected to an advisory jury instruction on reasonable doubt, an instruction similar to the one at issue in the present case. The trial court overruled the objection, and the defendants appealed. While the appeal was pending, the Court decided Stevenson. The Court of Special Appeals, in light of Stevenson, reversed the convictions in Davis. Davis is especially noteworthy here because defense counsel in Davis objected to an advisory instruction before Stevenson was decided. In Robertson v. State, 295 Md. 688, 689, 457 A.2d 826, 826 (1983), we held that the “defendant’s counsel made clear to the trial judge that even though the jury was the judge of the law under Article 23 of the Maryland Declaration of Rights, he was entitled to an instruction that the court’s comments on the burden of proof were not merely advisory but were binding upon the jury. Failure to give the requested instruction constituted reversible error.” The trial in Robertson occurred on 24 November 1980, before Stevenson was decided. In addition, the defendants in both Stevenson and Montgomery had the foresight to object to the advisory nature of instructions prior to this Court’s decision in Stevenson.

Although the correct objection reasonably was available here to trial counsel based on recent Maryland caselaw alone, trial counsel also could have looked to the annals of great American jurisprudence for inspiration. Justice Story noted in U.S. v. Battiste, 24 F. Cas. 1042 (C.C.Mass.1835)³¹:

... I hold it the most sacred constitutional right of every party accused of a crime, that the jury should respond as to the facts, and the court as to the law. It is the duty of the court to instruct the jury as to the law; and it is the duty of the jury to follow the law, as it is laid down by the court. This is the right of every citizen; and it is his only protection. If the jury were at liberty to settle the law for themselves, the effect would be, not only that the law itself would be most uncertain, from the different views, which different juries might take of it; but in case of error, there would be no remedy or redress by the injured party; for the court would not have any right to review the law as it had been settled by the jury. Indeed, it would be almost impracticable to ascertain, what the law, as settled by the jury, actually was. On the contrary, if the court should err, in laying down the law to the jury, there is an adequate remedy for the injured party, by a motion for a new trial, or a writ of error, as the nature of the jurisdiction of the particular court may require. Every person accused as a criminal has a right to be tried according to the law of the land, the fixed law of the land; and not by the law as a jury may understand it, or choose, from wantonness, or ignorance, or accidental mistake, to interpret it.

The advisory instruction was also the subject of vigorous debates among notable members of the Maryland Bench and Bar for several decades prior to Adams’s trial. See Stewart v. LaGrand, 526 U.S. 115, 119, 119 S.Ct. 1018, 1021, 143 L.Ed.2d 196 (1999) (holding that a constitutional claim is not novel where there is an ongoing debate about the issue); Cole v. Stevenson, 620 F.2d 1055, 1062 (4th Cir.1980) (holding that a change in law did not excuse waiver). At the time of his published opposition to the practice of advisory instructions, Judge Samuel K. Dennis was, among other things,³² Chief Judge of the Supreme Bench of Baltimore. Samuel K. Dennis, Maryland’s Antique Constitutional Thom, 92 U. Pa. L.Rev. 34, 34 (1943). Chief Judge Prescott of the Court of Appeals, in an address to the Maryland State Bar Association, described his objection to advisory jury instruction:

I am opposed to it because it violates the fundamental concepts of trial by jury; it has been discarded and repudiated in nearly every jurisdiction where tried; it has retarded the growth of our substantive criminal law; it is contrary to the ancient maxims of the common law; such outstanding leaders of our profession as Justice Story, Lord Mansfield, Charles Evans Hughes, Judges Chesnut, Markell, and Dennis, Charles McHenry Howard and scores of others have spoken or written against it; juries are not trained by experience nor training to interpret the law; of manifold other reasons why such an anomalous situation should not be permitted to remain as a blight upon the administration of justice in Maryland, In my humble judgment it is archaic, outmoded, and atrocious.

Judge Stedman Prescott, Juries as Judges of the Law: Should the Practice Be Continued?, 60 Md. St. Bar. Assc. Rep. 246, 257 (1955) (citations omitted). Chief Judge Henderson and Chief Judge Markell of the Court also publicized their objections to the practice of treating juries as the judges of law. Hon. William L. Henderson, The Jury as Judges of Law and Fact in Maryland, 52 MD. ST. BAR. ASSC. REP. 184 (1947); Charles Markell, Trial by Jury: A Two-Horse Team or One-Horse Team, 42 MD. ST. BAR. ASSC. REP. 72 (1937); see also Judge W. Calvin Chesnut, Courts and Juries, 46 Md. St. Bar. Assc. Rep. 159 (1941).

In sum, as Stevenson was merely an acknowledgment and application of existing law, there existed a reasonable basis for Adams to object at trial to the facially advisory nature of the instruction. Furthermore, Adams could have formulated an objection to the advisory instructions based on similar objections made in other criminal trials, earlier and contemporaneously published state court opinions, landmark opinions by United States Supreme Court Justices, and publicized comments by distinguished members of the Maryland Bench and Bar.

B.

Misconceptions within the Bench and Bar

Adams relies on dicta in Walker to support the proposition that a relevant and contemporary “misconception by a large segment of the bench and the bar concerning the [law]” may constitute special circumstances excusing waiver. Walker, 343 Md. at 648, 684 A.2d at 438. In Walker, a petitioner sought post-conviction review of his waived allegations of error to the jury instructions regarding the intent element of the offense for which Walker was convicted, arguing that mistake as to the law by a large segment of the bench and bar excused his waiver. Walker argued, and the post-conviction court found, that “prior to Jenkins,³³ many trial judges and lawyers [mistakenly] believed that a jury instruction like that given at Walker’s trial was a correct statement of the law.” Walker, 343 Md. at 634, 684 A.2d at 431. The “ ‘special circumstances’ found by the circuit court were that, at the time of Walker’s trial, the law concerning the intent element of assault with intent to murder was misunderstood by trial judges and lawyers, and that the law was not finally clarified until this Court’s opinion in State v. Jenkins . . . after Walker’s conviction became final.” Walker, 343 Md. at 635, 684 A.2d at 432. Eschewing substantive analysis of the legal validity of the petitioner’s argument, we rejected his argument because the alleged erroneous instruction regarding intent “was simply not an issue at all” at Walker’s trial. Walker, 343 Md. at 650, 684 A.2d at 439. For the sake of argument, however, we, in dicta, “assume[d] that, if the circumstances in [Walker’s] case [nonetheless had presented an issue regarding intent], the circuit court’s decision excusing Walker’s waiver of the jury instruction issue would have been warranted.”³⁴ Walker, 343 Md. at 648-49, 684 A.2d at 438.

There is some facial justification for Adams’s argument that, prior to Stevenson, there appeared to be some level of misconception afield among some contingent of the Bench and Bar regarding the proper role of the jury in criminal cases. The Court of Special Appeals noted such confusion on at least two occasions. In Allnutt v. State, 59 Md.App. 694, 701, 478 A.2d 321, 324 (1984), the intermediate appellate court stated, “Until Stevenson v. State, 289 Md. 167, 179, 423 A.2d 558, was decided on December 17, 1980, it was generally believed by bench and bar that a judge’s comments as to the law in a criminal case were advisory and not binding on the jury. A jury-twelve lay persons-was to determine not only the evidence but the law of the case.” In Petric v. State, 66 Md.App. 470, 478, 504 A.2d 1168, 1172 (1986), our appellate colleagues noted, “Ere Stevenson, it was generally thought by bench and bar alike that jurors in criminal cases were judges of the law and fact. Stevenson made clear that such was not the situation, but that a jury’s judicial role was limited to the ‘law of the crime.’ ”

Furthermore, at the time of Adams’s trial, Maryland Rule 757(b) stated that “[i]n 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.” See Guardino, 50 Md.App. at 701 n. 2, 440 A.2d at 1105 n. 2 (“We note that Rule 757 b requires the court ‘(i)n every case in which instructions are given’ to instruct the jury that the instructions are advisory only. Under the dictates of Montgomery v. State, 292 Md. 84, 437 A.2d 654 (1981), this is manifestly not correct.”). Those indicia, together with an analysis of the actual state of the law prior to Adams’s trial (supra at 325-32, 958 A.2d at 349-51), suggest a certain degree of perceptible schizophrenia within the Maryland legal community regarding the proper role of the jury. As the Court of Special Appeals in Guardino recognized, the Court of Appeals consistently had limited the power of the jury to determine law outside of “the law of the crime,” however, these teachings were “not recognized in practice by many of the trial courts.” Guardino, 50 Md.App. at 702, 440 A.2d at 1105.

Despite the potential confusion within the bench and bar over the issue, we shall not exercise our discretion to excuse Adams’s waiver. As in Oken, Hunt, and Walker, the petitioner’s argument shall be deemed waived and unexcused.

Oken provides a particularly apt comparison. In Oken, the defendant³⁵ argued that his waiver should be excused. We rejected that argument:

Oken’s argument to excuse the waiver, however, is without merit. The “reverse Witherspoon[v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968)]” right to exclude jurors for cause was established by the Supreme Court in 1988 in Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988). We recognized this right in Hunt v. State, 321 Md. 387, 583 A.2d 218 (1990).

Oken, 343 Md. at 273, 681 A.2d at 38. Thus, because the law upon which the defendant relied in the post-conviction proceeding to support his issue waived at trial was established at the time of his trial, and hence available to form the basis for a valid objection at trial, we declined to exercise our discretion to excuse the waiver. In the present case, as discussed supra, the basis for a valid objection regarding the advisory jury instructions was available in Maryland law at the time of Adams’s trial. Although Stevenson was decided after Adams’s trial, Stevenson, by its express terms, only described what already was the law, based upon cases decided well before Adams’s trial. We also decline to exercise our discretion because of the potential for unfair prejudice to the State. In deciding whether to exercise discretion to consider unpreserved arguments, “the appellate court should consider whether the exercise of its discretion will work unfair prejudice to either of the parties.” Jones v. State, 379 Md. 704, 714, 843 A.2d 778, 784 (2004); see also State v. Bell, 334 Md. 178, 189, 638 A.2d 107, 113 (1994) (noting that “this discretion should be exercised only when it is clear that it will not work an unfair prejudice to the parties or to the court”). A delay of twenty-four years before asserting Ms waived arguments (which were based on two cases decided in 1980 and 1981, respectively) may be a testimonial to patience, but the delay poses a real potential for serious hardship and prejudice to the State’s ability to mount a new prosecution. This delay is particularly inexcusable because “[a]s originally enacted in 1958, the [Post-Conviction Procedure] Act did not place any limit on the number of post conviction petitions which a petitioner was entitled to file.” Mason v. State, 309 Md. 215, 217-18, 522 A.2d 1344, 1345 (1987).³⁶

Dicta in Creighton v. State, 87 Md.App. 736, 744, 591 A.2d 561, 565 (1991), is particularly apt to the “fairness” considerations regarding our exercise of discretion — “It is not right for a prisoner to sit back and wait for memories to fade, for records to disappear, for crucial witnesses to die or otherwise become unavailable to rebut allegations of incompetence or procedural irregularity before filing his or her petition.” The same analysis applies to the second consideration in deciding whether to exercise discretion, that “the appellate court should consider whether the exercise of its discretion will promote the orderly admimstration of justice.” Jones v. State, 379 Md. 704, 715, 843 A.2d 778, 784. To do so in this case would not. As noted by the Court of Special Appeals in Guardino, where the jury instruction occurred before Stevenson was handed down:

We appreciate that both the bench and the bar are charged with having knowledge of the law. But in light of Rule 757 h, the failure of the trial judge to recognize that the Court of Appeals had “consistently interpreted” Art. 23 as “restraining the jury’s law deciding power,” limiting it to the law of the crime, cannot excuse the failure of defense counsel to recognize that restraint and interpose a timely objection when the trial judge failed to abide by it.

Guardino, 50 Md.App. 695, 702, 440 A.2d 1101, 1106 (1982).

C.

Plain Error

Adams contends that his waiver is excused by the fact that the complained-about jury instruction constituted “plain error.” Adams’s argument fails in the first instance because, as discussed above, “plain error” review under the Maryland Rules is not applicable in post-conviction proceedings.

Adams’s argument fails also because the fact that an error was “plain” does not excuse waiver. In Stevenson, we held that the objection to the specific advisory instructions had not been preserved for appellate review, despite the fact that Stevenson had preserved a general objection, based upon the Fourteenth Amendment, to advisory instructions. Stevenson, 289 Md. at 172-73, 423 A.2d at 561. Although the Court “could have taken cognizance of it on its own motion, [the Court] chose not to do so.” Guardino, 50 Md.App. at 703, 440 A.2d at 1106; see also Scarborough v. State, 50 Md.App. 276, 281 437 A.2d 672, 676 (1981) (declining to exercise discretionary review over unpreserved allegation of error regarding advisory jury instructions in violation of Stevenson); Simms v. State, 52 Md.App. 448, 455, 449 A.2d 1196, 1199 (1982) (“Although admitting a ‘failure to note proper objection,’ appellant last urges that we find plain error in the trial court’s jury instruction that its (the court’s) charge was ‘advisory only.’ As we refused to take cognizance of a similar issue in Guardino ... we decline to do so here . . . . ” (citing Guardino, 50 Md.App. 695, 440 A.2d 1101)). We decline to recognize plain error in the present case.

Jurisdiction Instructions

Adams also argues that his petition for post-conviction relief should be granted because the trial court gave an erroneous jury instruction on jurisdiction. The trial court, utilizing a special verdict, instructed the jury that there were two possible bases for jurisdiction. First, the jury may find beyond a reasonable doubt that the crimes occurred in Maryland. Second, the jury may find that the State had jurisdiction to prosecute the crimes under Maryland Code (1957, 1971 Repl.Vol.), Article 27, § 465. Adams’s post-conviction contention on this score, however, also has been waived.

As discussed above, it is clearly established that failure to object to a jury instruction at trial normally constitutes waiver of that ground for purposes of the UPPA. Adams failed to object at the time of the instruction and also failed to raise an appropriate issue on direct appeal.³⁷ Adams has not rebutted the presumption of waiver.

Furthermore, he has not shown any reason for us to excuse this waiver. The arguments upon which Adams relies in his arguments regarding the advisory jury instructions do not apply to his arguments regarding the jurisdiction alternatives. Arguments regarding jurisdiction were reasonably available to his trial counsel. Adams’s counsel argued throughout the case about this point. At a preliminary hearing, counsel for Adams and counsel for Adams’s then co-defendant, Knight, demonstrated apt understanding of the distinction between venue and jurisdiction.

Counsel for Knight: Now, we think, we submit to the Court, that that conduct, those rapes which occurred outside of the State of Maryland, by virtue of the State’s own evidence, this Court does not have jurisdiction over and we ask the Court to determine that question as a preliminary matter, since these counts are present in the indictment and testimony would be allowed otherwise to come before the jury relating to alleged criminal acts over which this Court has no jurisdiction.

We think that the reliance of the State upon the provisions of the Maryland Statute in question, in light of the facts, make it really a question of law which can be determined in advance of trial; and therefore, if decided in favor of the defendant would not put the defendant in the position of having evidence come into this trial with respect to the allegations of the other charges in this indictment of rape that are alleged to have occurred in Maryland, that would infect the entire trial with evidence of a great many rapes over which the Court has no jurisdiction. The introduction of that testimony would prejudice the defendant severely, if otherwise not admissible, and so determined later. So, we would ask the Court to determine that as a preliminary matter.

Court: All right. I assume you join in that, [Adams’s Defense Counsel]?

Adams’s Defense Counsel: Yes, I would join in [Counsel for Knight’s] argument. And I would also add that it is basic law that in order for a given State to have jurisdiction over a criminal act the act basically must have occurred within the State.

Now in this particular case I think it is incumbent upon the State to show the critical element, to wit, the perpetration of a rape occurred in the State of Maryland. As [Counsel for Knight] pointed out, the State’s own witnesses, at least in preliminary reports, clearly indicate those acts did not take place in the State of Maryland.

Court: All right.

State’s Attorney: Your Honor, I would point out a number of things. First of all, Article 27, Section 465, I suggest to the Court in fact makes it a crime to actually transport with intent to rape, regardless of where the rape eventually occurs. I would point out, first of all, under that particular statute that even if all the rapes occurred in D.C., which we do not in any way either suggest of [sic] concede, that the State would have jurisdiction, providing that we show that at the time of transportation there, in fact, was an intent to commit rapes. The Legislature I think clearly made it a crime in and of itself to transport with that intent, made it a crime equivalent to the actual act of rape.

Secondly, in this particular case I think it is without dispute that some of the rapes without a doubt occurred in the State of Maryland.

For all those reasons we ask the Court [to] deny the motions.

Counsel for Knight: Your Honor, [the State’s Attorney’s] first comment, that 465 creates a separate crime, I don’t believe that is true. But in any event, they weren’t indicted for violation of 645, if that us some of new crime that is created.

Court: I don’t think 465 creates any kind of crime.

Counsel for Knight: He indicates a crime.

Court: It creates jurisdiction.

State’s Attorney: That is what I meant to say.

Court: I have read this four times, and it says that if somebody transports with intent to violate any of the provisions, and that is any of the provisions of this subheading, which I assume is all rape offenses, and the intent is followed by an actual violation of this subheading, the defendant may be tried in an appropriate court within whose jurisdiction the county lies, where the transportation was offered, solicited, has begun, continued, or ended. I think it describes this. If you form an intention eventually to rape somebody, and you start out in Baltimore and you end up in the State of Washington, and you finally rape her there, I think this statute says that Baltimore has jurisdiction.

Counsel for Knight: Well, I would submit to the Court that my interpretation of that statute, and would hope the Court would accept this interpretation of the statute, is that that statute relates to intercountry situations and intrastate situations; that Maryland would be constitutionally powerless to extend its jurisdiction for an act which occurs outside of its boundaries by saying that if you merely form the intent in Maryland you are guilty of the substantive crime.

That creates constitutional problems which I believe could only be avoided by interpreting that section the way the Court has interpreted that section in the annotation to that section, and that is a Baltimore City-Baltimore County situation, that provides for the place where trial may be held. And certainly there would be no constitutional problem to that, because there is no constitutional right to venue. But there certainly is a constitutional limitation on the power of the Court to extend its jurisdiction beyond the physical boundaries. And we would submit to the Court that the only way to avoid that inherent problem is the Court — and this is the only case that I have been able to find on this particular section—

Court: That had to do with Baltimore County — Baltimore City?

Counsel for Knight: That is correct. I recognize the facts of that case are of little help under the circumstances.

Court: I understand that.

Counsel for Knight: But it is the only law that we have in Maryland. And I think that basically jurisdictional and constitutional law tells us that the State of Maryland can’t extend its jurisdiction beyond the boundaries for a substantive act. And I think even though it is a venue case, the McBurney38 case is also instructive with respect to this case.

We have here a crime. A crime is not completed when the intent is formed to commit the rape. [Actus reus] is also an integral part of the crime, and that is really what establishes jurisdiction.

So, I submit to the Court that on [the State’s Attorney’s] legal theory it can’t create a separate offense. And I agree with the Court it doesn’t purport to create a separate offense. I think it creates a situation where Prince George’s County could try a guy for picking up somebody in Prince George’s County and transporting them and raping them in Montgomery County.

Court: All right. Is there a motion here for me to decide this preliminarily?

Counsel for Knight: That is correct.

Court: All right. Anything else you want to tell me?

Adams’s Defense Counsel: Your Honor, I would again adopt [Counsel for Knight’s] arguments, and I would like to argue to the Court another line of cases where situations did arise where the acts were crossing state lines, particularly between the State of Maryland and the District of Columbia.

In one case, your Honor, the case of Bowen v. State, 206 Md. 368 [111 A.2d 844 (1955)], a case of larceny after trust and embezzlement, where the acts were connected with Maryland, but the conversion of the assets and all the transactions involving the checks took place in D.C. The conviction by a Maryland Court was reversed for lack of jurisdiction.

Another case is Goodman v. State, 237 Md. 64 [205 A.2d 53 (1964)], where a person obtained a prescription falsely to obtain narcotic drugs in Montgomery County, went to the District of Columbia and passed a prescription, received drugs. The Court held the critical element of the offense, which was passing the drugs, did not take place within the State of Maryland; therefore, Maryland did not have jurisdiction.

Court: You didn’t have a statute, did you?

Adams’s Defense Counsel: No, your Honor.

Court: Didn’t have any kind of statute like this.

Adams’s Defense Counsel: I would also cite Urciolo [v. State1, 272 Md. 607 [325 A.2d 878 (1974) ], with which the Court may be familiar.

But your Honor, again I submit that Maryland has no authority to legislate itself into having jurisdiction over acts that do not occur within the State.

During the direct examination of Kathy P., Adams’s counsel objected to Kathy P.’s testimony that the rapes occurred on Branch Avenue. At that point, the parties approached the bench, and the following discussion occurred:

Adams’s Defense Counsel: Your Honor, I am going to object to any testimony about any sexual acts, because as I understand it now counsel is not in a position to proffer that any of those acts took place in the State of Maryland. As I understand it at this point the evidence that the State poses is to the contrary, being that all sexual acts took place within the District of Columbia.

State’s Attorney: Your Honor, the evidence that we have, and I think it will come out through testimony, is as follows: That they started to undress her while she was on Branch Avenue, toward the District of Columbia; but at some point later she was in fact raped. When she was first raped she asked the individuals in the van where she was. They said in Maryland. She was then moved to another location, at which point she was raped by other individuals. She doesn’t know where she was.

At any rate, under the jurisdiction statute which I previously cited the Court, Article 27, 465,1 think it is quite clear we have the transportation in this county either beginning, continuing or ending, and the intent is, in fact to commit a sexual offense, and when such action as that occurs the statute gives this county jurisdiction to prosecute, and that is the reason we are proceeding.

Adams’s Defense Counsel: Your Honor, it is the position of the defendant that this statute cannot extend the jurisdiction of the State of Maryland beyond the State borders, but must be strictly within the counties within the state.

The exchanges illustrate that not only was the post-conviction argument regarding jurisdiction reasonably available to be made by Adams’s counsel at trial, but that Adams’s counsel understood the distinction between jurisdiction and venue. Therefore, Adams’s objection regarding the jury instructions and special verdicts regarding jurisdiction was waived by his failure to object at trial or raise the issue on direct appeal.³⁹

y.

Ineffective Assistance of Counsel

Adams contends that his trial counsel was ineffective for failing to object to the jury instructions on jurisdiction. Unlike most of his other post-conviction claims, this contention has been not waived by inaction in the prior proceedings. Nonetheless, he shall not prevail with his arguments.

The trial court instructed the jury, “If you find that the application of this statute is how this particular sex offense occurred you will check that, if you are not convinced beyond a reasonable doubt that the offense occurred in our state.” The instruction regarding the special verdict was repeated several times throughout the charge to the jury. Adams’s trial counsel not only did not object, but actually requested the court to instruct the jury on a specific finding. The following exchange is particularly relevant.

Adams’s Defense Counsel: I would submit that the Court’s proposed method is the better method, and I would ask the Court to do that, to get a specific finding as to whether or not the incidents involving the sexual acts and the rapes took place in the District of Columbia or Maryland.

Court: All of them?

Adams’s Defense Counsel: Assuming all of them go to the jury/[⁴⁰] your Honor, I would assume those questions would have to be answered definitely. I think the jury does have to find—

Court: Let’s assume I do it that way, what is the burden of proof on that issue?

Adams’s Defense Counsel: It is the same as the burden for any other—

Court: Anything else? You have to be convinced beyond a reasonable doubt?

Adams’s Defense Counsel: Yes, your Honor.

Adams’s ineffective assistance of counsel claims are governed by the two-part standard announced in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).

A defendant claiming ineffective assistance of counsel must show (1) that counsel’s performance was deficient, i.e., that the representation fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different, i.e., a probability sufficient to undermine confidence in the outcome.

State v. Borchardt, 396 Md. 586, 602, 914 A.2d 1126, 1135 (2007).

“There is, however, a heavy burden on the defendant to establish the deficiency.” Harris v. State, 303 Md. 685, 697, 496 A.2d 1074, 1080 (1985). “The ineffective assistance prong of Strickland is satisfied only where, given the facts known at the time, counsel’s choice was so patently unreasonable that no competent attorney would have made it.” Borchardt, 396 Md. at 623, 914 A.2d at 1147 (citations omitted).

Adams’s ineffective assistance of counsel claim fails both prongs of the Strickland test. First, the performance of Adams’s trial counsel regarding the jurisdiction instructions was not deficient. Adams’s claims that his trial counsel should have objected to the instruction on jurisdiction necessarily includes a claim that the counsel should have objected to the special verdict. It would be impossible for the trial court to seek a special verdict on both the location of the crime and the application of § 465 if the trial court could not instruct the jury on how to come to such a verdict. Adams’s claims fail, however, because failing to object to the special verdict was not deficient performance. A special verdict is a proper method to create an unambiguous record for appeal. “We have recommended, and continue to recommend, that trial judges use a special verdict to avoid ... ambiguity.” Dixon v. State, 364 Md. 209, 245 n. 33, 772 A.2d 283, 304 n. 33 (2001) (citations omitted); Gover v. Turner, 28 Md. 600 (1868) (holding that special verdicts may be found in criminal as well as in civil cases); see State v. Frye, 283 Md. 709, 723, 393 A.2d 1372, 1379 (1978):

(Where there is more than one ground for a verdict on a criminal charge, but where the ramifications of a guilty verdict on that charge will be different depending upon the ground chosen by the jury .... the court should ... give them appropriate instructions so that the basis of a ... verdict will be revealed. [Citations omitted]).

In the present case, the trial court explained the ambiguity that otherwise could result from a guilty verdict absent the special finding. Any appellate review would be hampered by the lack of a clear finding by the jury, likely necessitating a new trial or dismissal.⁴¹

The Court of Special Appeals here found that Adams’s trial counsel’s performance was deficient because he failed to object to the instruction despite the fact that McBurney v. State, 280 Md. 21, 371 A.2d 129 (1977), “proclaiming that § 465 of Article 27 had no extra-territorial effect, was handed down more than two years before [Adams’s] trial.” State v. Adams, 171 Md. App. 668, 711, 912 A.2d 16, 42 (2006). We are at a loss to appreciate how McBumey could be read to contain such a “proclamation.” We need not summarize McBurney. here, as it is sufficient to the moment to observe that the Court in McBurney discussed neither § 465 of Article 27 nor extraterritorial jurisdiction. It merely offered a brief discussion of the difference between jurisdiction and venue. Adams’s trial counsel, and for that matter the trial court, understood the difference between jurisdiction and venue.

The focus of Adams’s post-conviction argument concerns the application of § 465. Its resolution depends on whether § 465 was intended to address venue or was a jurisdiction-expanding statute. Either interpretation was reasonable, and thus, Adams’s counsel’s performance was not deficient for failing to object. The law on extra-territorial jurisdiction is well-settled that states validly may expand their common law territorial jurisdiction by statute to the fullest extent permitted by the Constitution. See West v. State, 369 Md. 150, 161, 797 A.2d 1278, 1284 (2002) (“[M]any states have by statute expanded territorial criminal jurisdiction, so that, if any element of an offense takes place in the state, the state would have jurisdiction. Maryland, however, has not enacted such a statute.” (citing Pennington v. State, 308 Md. 727, 728-29 n. 2, 521 A.2d 1216, 1216-17 n. 2 (1987))). Although it was later held to be a statute addressing venue, § 465 reasonably could be interpreted by counsel validly to be an effort to expand Maryland’s territorial jurisdiction.

Additionally, Adams’s trial counsel was not deficient because he properly preserved his argument that § 465 did not expand Maryland’s territorial jurisdiction. In fact, the trial court explained to Adams’s counsel exactly how this particular instruction would assist him if the ruling on the statute later proved to be the subject of an appeal.

Court: ... I think I am going to solve this problem very easily. I am going to instruct on the statute, and also add the question to be decided by the jury where all these acts took place. At this time I may agree with [the State’s Attorney]. Maybe at a later time I may disagree with you. If the jury can make a finding it might solve a lot of problems, if this case went to the Court of Appeals or the Court of Special Appeals and there was a specific finding in that regard by the jury.

Adams’s Defense Counsel: Your Honor, I hate to interrupt the Court, but I think this is the very issue we addressed earlier.

Court: Yes.

Adams’s Defense Counsel: The State has not shown anything upon which the jury can make that determination. And that is why I submit to the Court that this should not be passed to the jury.

Court: If this case is ever appealed, or he is convicted and I make a subsequent ruling the statute applies out of state, and the Court of Appeals says I am wrong, or the jury says that it did happen in the District and I am wrong, that ends it right then and there.

State’s Attorney: ... It is a good procedure to get the jury to come back with specific findings of fact in a case like this, obviously, if this case is appealed to the Court of Appeals.

Court: How would the Court of Appeals know how the jury made a determination, based on what you told me?

Court: Now suppose I agree with you and say you are absolutely right in your interpretation, then this case goes to the Court of Appeals and the Court of Appeals says this is not the law, didn’t have any jurisdiction because it happened — they don’t really know where it happened. How does the Court of Appeals know where it happened?

Based on this discussion, it is apparent that the issue properly would have been preserved for appeal, if in fact the jury did not find that the rapes actually occurred in Maryland. The jury found that the rapes occurred in Maryland, however, and thus the tactically preserved issue regarding the interpretation of § 465 became moot.

Adams also fails to demonstrate here a substantial probability that counsel’s failure to object to the instruction altered the outcome of his case.⁴² The jury was instructed clearly that they could find, if convinced beyond a reasonable doubt by evidence, that the rapes occurred in Maryland. The trial court held, and the Court of Special Appeals affirmed, that the evidence was sufficient for the jury to so conclude. Adams, without citation to any authority, argues in his post-conviction proceeding that his trial counsel “utterly failed” to object to a “completely irrelevant” instruction that “completely undercut” the defense that he had “extensively argued” to the jury. The gratuitous use of adverbs does not obscure the lack of authority. We fail to understand how a reasonably simple special verdict instruction so distracted and confused the jury that it undercut Adams’s arguments regarding the location of the crimes. Furthermore, “[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding, or that the errors impaired the presentation of the defense.” Harris v. State, 303 Md. 685, 700, 496 A.2d 1074, 1081 (1985). The bare assertion of “completely undercutting” the defense does not carry the day here.

JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED IN PART AND REVERSED IN PART; CASE REMANDED TO THAT COURT WITH DIRECTIONS TO AFFIRM IN PART AND REVERSE IN PART THE JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY AND REMAND THE CASE TO THE CIRCUIT COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION; COSTS TO BE PAID BY RESPONDENT.

BELL, C.J., BATTAGLIA and ELDRIDGE, JJ., Dissent.

1 . It appears from our review of the record that the victim in the present case was sixteen years old at the time of the attack. We will accord her the anonymity that we would accord any alleged victim of a similar age.

2 . The post-conviction court in the present proceedings noted that it "was clear that the first rape occurred within minutes after the kidnapping began, and thus, almost indisputably occurred inside the Maryland line."

3 . Another set of attacks commenced at a stop in a parking lot later.

4 . See, e.g., State v. Jones, 51 Md.App. 321, 325, 443 A.2d 967, 970 (1982), vacated as not ripe, 298 Md. 634, 471 A.2d 1055 (1984) (holding that § 465 is a venue statute and does not apply to a defendant who transports his victim across state lines). Venue refers to the particular locality within a state that may try a criminal charge. McBurney v. State, 280 Md. 21, 31, 371 A.2d 129, 135 (1977). By contrast, " '[tjerritorial jurisdiction describes the concept that only when an offense is committed within the boundaries of the court’s jurisdictional geographic territory, which generally is within the boundaries of the respective states, may the case be tried in that state.’ " West v. State, 369 Md. 150, 158, 797 A.2d 1278, 1282 (2002) (quoting State v. Butler, 353 Md. 67, 72-73, 724 A.2d 657, 660 (1999)).

5 . During this proceeding, Adams requested and was granted two special instructions to be given to the jury regarding certain incidents that occurred at trial. The first instruction was that the jury was to infer nothing from the fact that they had seen Adams wearing handcuffs during the trial. The second instruction was that the jury was to infer nothing from the absence of the co-defendant, Knight, at trial. Knight pled guilty after the trial commenced and was absent from the defense table for the remainder of the trial.

6 . Article 23 of the Maryland Declaration of Rights states, "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.”

7 . Adams, however, raised several other objections to the jury instructions. He objected to the trial court’s refusal to instruct the jury on alleged difficulties in cross racial identification (perhaps representing a degree of prescience to the matter much later discussed in Smith v. State, 388 Md. 468, 880 A.2d 288 (2005)). That objection was overruled by the trial court. Adams also objected to the trial court’s failure to give an instruction to the jury informing them that they may choose the weight to accord a photographic array and a lineup identification. The judge agreed with Adams and gave the instruction. Finally, Adams objected to the instruction given by the trial court that said a trial is "a search for the truth.” Adams contended that the definition of a trial was more properly described as a “determination as to whether or not the State has proven beyond a reasonable doubt that the defendant is guilty.” The judge overruled Adams’s objection to the “search for the truth” instruction.

8 . Adams contended that: (1) the evidence was insufficient for a reasonable jury to conclude that the crimes occurred in Maryland; (2) the in-court identifications by Kathy P. and Teresa B. should have been suppressed; (3) the absence of co-defendant Knight from the trial, after he pled guilty, prejudiced the jury; (4) he was prejudiced when the jury members saw him wearing handcuffs in the hallway of the courthouse; (5) the indictment was invalid because the language of the indictment did not properly differentiate the various counts; (6) the trial court erred in denying Adams’s pro se "Motion to Dismiss Indictments Because of Delay to Prosecute"; (7) the trial court erred in refusing to instruct the jury on special difficulties posed by cross-racial identifications; and (8) the trial court erred in instructing the jury that a trial is a "search for the truth.”

9 . The post-conviction judge concluded that the reasonable doubt instruction was proper and that Adams’s trial counsel was not deficient in failing to object to the reasonable doubt instruction. Adams does not seek further judicial scrutiny of these rulings.

10 . The Court also found that Adams’s trial counsel was ineffective for failing to file a Motion to Modify Sentence within 90 days, as permitted by Maryland Rule 4-345(b) (former Maryland Rule 774 (Maryland Code, 1957, 1977 Repl.Vol., 1983 Cum.Supp.)). The Circuit Court held that "[Adams] should be entitled to file a belated motion for modification of sentence.” This holding was affirmed by the Court of Special Appeals. State v. Adams, 171 Md.App. 668, 716 912 A.2d 16, 44 (2006). The State, in its Petition for Certiorari here, did not challenge this ruling. Accordingly, regardless of the outcome in the present matter, Adams is entitled to file a belated Motion for Modification of Sentence.

11 . Stevenson’s conviction was affirmed because she, much like the present case, did not make a proper, timely objection at the time the instructions were given that the instructions exceeded the proper scope of Article 23.

12 . Judge Eldridge dissented, joined by Judge Davidson and Judge Cole in part. Judge Eldridge argued, as he does here (see Dissent op. at 299-301, 958 A.2d at 331-32), that Article 23 was facially unconstitutional. Furthermore, Judge Eldridge contended that the record indicated that a proper objection was made by Stevenson at trial. Judge Cole joined only the portion of Judge Eldridge’s opinion discussing Stevenson’s objection to the instructions at trial as preserving her appellate argument.

13 . The dissent contends that Jenkins is factually on point. Dissent op. at 332-33, 958 A.2d at 351-52. It is not, however, legally on point. The District Court in Jenkins stated that “Jenkins did not raise an objection to the advisory nature of the jury instructions at the trial or on appeal, and thus, consistent with Maryland’s procedural default rule, appears to have waived the right to raise the issue on post-conviction or habeas review.” Jenkins v. Smith, 38 F.Supp.2d 417, 421 (D.Md.1999). That finding, however, did not end the analysis for the federal court:

The analysis in this case does not end here, however. Despite Jenkins having procedurally waived his right to object to the jury instructions, the Circuit Court for Prince George's County addressed on the merits his argument raised for the first time in his fifth post conviction petition and fifth habeas corpus petition. The Wainwright rule is therefore inapplicable where the state in effect ignores its own independent state procedural default rule and addresses the merits of an argument.... Accordingly, Jenkins' objection to the jury instructions is properly before the Court in this § 2254 petition.

Jenkins v. Smith, 38 F.Supp.2d 417, 421-22. Thus, the federal court avoided the issue of waiver because the state court previously addressed Jenkins’s issues on the merits. In the present case, however, we review the waiver analysis of the Circuit Court and Court of Special Appeals. Because the Circuit Court for Prince George’s County in Jenkins addressed the merits, the federal court bypassed the waiver issue.

14 . Judge Eldridge concurred in the result, joined by Judge Davidson. Judge Eldridge, consistent with his dissent in Stevenson, maintained that Article 23 was facially unconstitutional.

15 . To be sure, the majority opinions in Stevenson and Montgomery have not been praised universally from within, Stevenson 289 Md. at 189, 423 A.2d at 570 (Eldridge, J., dissenting), Montgomery v. State, 292 Md. at 96, 437 A.2d at 660 (Eldridge, J., concurring), and without the Judiciary, Michael A. Millemann, Collateral Remedies in Criminal Cases in Maryland: An Assessment, 64 MD. L. REV. 968, 1030 (2005), criticisms echoed by the dissent here.

16 . Maryland Code (2001), Criminal Procedure Article, § 7-106(c) provides that a post-conviction petitioner may obtain relief, even if the claim for relief has been waived or finally litigated, if a judicial decision from a "binding” court imposes a new "procedural or substantive standard” that is "intended to be applied retrospectively." Stevenson did not articulate a new "procedural or substantive standard. Therefore, Adams may not obtain relief under § 7-106(c). In any event, such an argument is not properly before this Court. Adams attempts to adopt in this regard, by reference, the arguments contained in an amicus brief filed by Families Against Injustice. Adams cites Maryland Rule 8 — 503(0, which provides that in a "case involving more than one appellant or appellee, any appellant or appellee may adopt by reference any part of the brief of another.” The present case has only a single appellant, the State, and a single appellee, Adams. The rule only permits litigants to adopt the arguments of other parties to the litigation. Thus, this argument is not properly before us.

The dissent is critical of this footnote. Dissent op. at 311-12, 958 A.2d at 338-39 n. 6. Maryland Rule 8-503 requires that a case must "involved more than one appellant or appellee” before a party may adopt the arguments in the brief of another. Further, the dissent conflates "issues” with "arguments.” The two are not the same. The issue of whether § 7-106 applies to Adams’s case is properly before this Court. Adams’s arguments regarding the application of 7-106(c) are not. In any event, a further footnote duel is pointless. The dissent and majority opinion agree that "the waiver provisions of the Post Conviction Act are not directly applicable to this case.” Dissent op. at 302, 958 A.2d at 332-33 n. 1. The considerations discussed in § 7-106(c), nonetheless, may serve as guidance in determining whether discretion should be exercised to excuse a waiver. Further, the real disagreement between the dissent's position and our own is that we conclude that Stevenson and Montgomery were not “new law” when they were decided.

17 . If its waiver argument were found to be lacking or Adams’s waiver excused, the State concedes that the challenged instructions were erroneous.

18 . Unless otherwise noted, all subsequent statutory references are to Maryland Code (2001), Criminal Procedure Article.

19 . In Rose, we noted:

We are not aware of any decision by the United States Supreme Court or this Court holding that an issue involving the validity of a reasonable doubt instruction, not objected to at trial or raised on direct appeal, may nevertheless be raised for the first time in a post conviction proceeding unless there was an intelligent and knowing waiver by the defendant personally.

Rose, 345 Md. at 249, 691 A.2d at 1319. Ten years have elapsed since Rose, and we still are unaware of any such case.

20 . Conceivably, the instructions could have been challenged on direct appeal, even though unpreserved at trial, under the plain error doctrine. See, e.g., Himple v. State, 101 Md.App. 579, 647 A.2d 1240 (1994) (reversing conviction on erroneous jury instructions despite lack of objection at trial because instructions constituted "plain error”); but see Middleton v. State, 49 Md.App. 286, 292 431 A.2d 734, 737 (1981) (holding that jury instruction stating that jurors arc judges of both law and fact in criminal trial prior to Stevenson was not plain error even where Stevenson was decided prior to resolution of the appeal); Hall v. State, 292 Md. 683, 691 n. 3, 441 A.2d 708, 712 n. 3 (1982) ("Maryland cases abound with instances where the plain error doctrine was advanced for a failure to instruct and where this Court subsequently denied review.”). Plain error review, however, is only available technically on direct appeal from a conviction. Cirincione, 119 Md.App. at 512, 705 A.2d at 116 ("Precedent dictates ... that plain error review is a creature of direct appellate review only and is not available in post conviction proceedings.”); Prokopis v. State, 49 Md.App. 531, 433 A.2d 1191 (1981) (holding that challenge to jury instructions that stated that the jury is to be the judge of the law was waived because plain error review does not apply in post-conviction proceeding); Walker, 343 Md. at 647, 684 A.2d at 438 ("[The rules] authorizing a court to take cognizance of ‘plain error’ despite the waiver of an issue, literally apply only to direct appellate review of a judgment.”).

21 . Although the two inquiries occasionally overlap and are often confused, the special circumstances inquiry under § 7-106(b)(1)(ii) is a factually distinct inquiry from that regarding the petitioner’s attempt to rebut the presumption of waiver under § 7-106(b)(2). In endeavoring to rebut the presumption of waiver, normally the petitioner is attempting to demonstrate that, although he intended to act to preserve an issue for review, an excusable oversight caused the issue not to be preserved. For example, in Creighton v. State, 87 Md.App. 736, 591 A.2d 561(1991), a petitioner successfully rebutted the presumption of waiver by showing that he intended to appeal and had directed his attorney to appeal. The petitioner’s attorney, however, abandoned the appeal without his client's consent. The Court of Special Appeals held that the petitioner successfully rebutted the presumption of waiver of his right to appeal.

22 . The " ‘special circumstances’ doctrine ... authorizing a court in a post conviction action to excuse a waiver, is applicable only to situations ... requiring intelligent and knowing action before there is a waiver.” Walker, 343 Md. at 647, 684 A.2d at 438. This Court has applied, however, a special circumstances type of analysis to waivers such as the one in the instant case, where a Johnson v. Zerbst-type waiver was not implicated. Walker, 343 Md. at 647-48, 684 A.2d at 438. See Oken v. State, 343 Md. 256, 273, 681 A.2d 30, 38 (1996) ("Under Maryland Rule 8-131, this Court retains discretion to excuse a waiver [in a post-conviction proceeding].”). In the instant case, the application of a special circumstances type analysis stems from this Court’s exercise of discretion, rather than compelled by § 7-106(b)(1)(ii).

23 . There is a tactical aspect associated with the decision whether to object to the advisory jury instructions. Judge Markell described the advisory jury instruction as a "special constitutional boon” to defendants. Charles Markell, Trial by Jury: A Two-Horse Team or One-Horse Team, 42 Md. St. Bar. Assc. Rep. 72, 91 (1937). In 1976, Gary J. Jacobsohn conducted a survey of Maryland judges, soliciting their opinions regarding the advisory jury instruction. Over thirty-eight percent of respondents to the survey said that the advisory instruction “tends to help the Defendant.” No respondents said that it helped the prosecution. Gary J. Jacobsohn, The Right to Disagree: Judges, Juries, and the Administration of Criminal Justice in Maryland, 1976 WASH. U.L.Q. 571, 588 (1976). In the face of these data, it is obvious why a criminal defendant may decline to object to advisory jury instructions. Recognizing its potential benefits to their cause, some defendants sought to have the advisory jury instruction revived after Stevenson. E.g., Allnutt v. State, 59 Md.App. 694, 701, 478 A.2d 321, 324 (1984); Sibiga v. State, 65 Md.App. 69, 74, 499 A.2d 484, 486 (1985).

24 . A similar theory was rejected by the Court of Special Appeals:

First, he contends that the hearing judge erred in not applying the plain error set forth in Md. Rule 75 7h. He suggests that a post conviction hearing judge is authorized to recognize plain error and correct it. The rule, however, is simply not applicable to post conviction proceedings.

In urging that we now apply the plain error rule applicant is actually requesting that we consider this proceeding, not as an application for leave to appeal a denial of post conviction relief, but to recognize it as a direct appeal. We are not empowered to do so, however, even if we were so inclined. The Court of Appeals has held that post conviction may not be employed as a substitute for a direct appeal. See Kelly v. Warden, 243 Md. 717, 222 A.2d 835 (1966). Since post conviction may not be used as a substitute for a direct appeal, we may not, under the guise of applying the plain error rule, permit the rule to override the post conviction statute, § 645A(c), under which the hearing judge had determined that the jury instruction issue had been waived. On the contrary, while Art. 27, § 645A(c) obviously applies to post conviction proceedings, Md. Rule 757h. does not. Applicant’s sleight of hand will not avail.

Prokopis v. State, 49 Md.App. 531, 534, 433 A.2d 1191, 1193 (1981).

25 . There is no doubt that an appellate court may exercise its discretion under Rule 8-131 to consider an unpreserved issue that should have been raised in the earlier-reviewing post-conviction court or courts. This distinction is key. For example, in Jones v. State, 379 Md. 704, 843 A.2d 778 (2004), the Court of Special Appeals exercised discretion to consider the merits of the State's argument mounted initially before the intermediate appellate court, though not properly preserved in the post-conviction trial court. We affirmed the intermediate appellate court's exercise of discretion. Jones, 379 Md. at 715, 843 A.2d at 785. In such cases, the appellate court is exercising appellate discretion in its traditional sense. See also Conyers v. State, 367 Md. 571, 595, 790 A.2d 15, 29 (2002) (“The State had an opportunity to raise its waiver claim during the post-conviction proceedings, but instead chose to argue Petitioner’s Brady claims on the merits. As a result, the post-conviction court did not address waiver in connection with these arguments. While this Court may decide, in its discretion and under exceptional circumstances, matters not raised in the proceedings below, the State’s contention does not merit exceptional treatment here.”).

26 . We can only find one case that has gone so far as to imply a similar discretion in a trial court when it considers a post-conviction petition. See Walker, 343 Md. at 647-648, 684 A.2d at 438 ("Nevertheless, as the circuit court recognized in the present case, this Court has taken the position that a court, in a post-conviction proceeding, can excuse a waiver based upon an earlier procedural default if the circumstances warrant such action. In effect, we have upheld the application of the 'plain error’ or 'special circumstances’ principles to waivers of the type here involved.”). As noted in Cirincione, the authorities relied upon by Walker in support of this assertion, however, do not support Walker’s expansive view of judicial discretion. Walker first cites Oken, 343 Md. at 272-274, 681 A.2d at 38. Oken, however, states that "[fonder Maryland Rule 8-131, this Court retains discretion to excuse a waiver.” Thus, Oken relies upon a rule applicable only to appellate courts considering direct appeals. In addition, Oken states only that the Court of Appeals, not a trial court in a post-conviction proceeding, possesses discretion to excuse a waiver. Walker also cites Foster v. State, 305 Md. 306, 315, 503 A.2d 1326, 1331 (1986), as support for its assertion. Foster is inapplicable because it was a case decided on direct appeal. Further, we are unable to see how Foster supports the assertion that a trial court has discretion to excuse a waiver in post-conviction proceedings. Foster states:

We recognize that the failure of counsel to raise certain types of issues on appeal, whether by inadvertence or deliberate decision, would not necessarily preclude their consideration in a subsequent proceeding. Such issues include rights which cannot be waived absent intentional and knowing action by the defendant, rights which can only be waived personally by a defendant, matters which are deemed more appropriate for resolution in proceedings subsequent to an appeal such as proceedings under the Post Conviction Procedure Act, Code (1957, 1982 Repl.Vol.), Art. 27, § 645A et seq., or issues where there exist special circumstances excusing waiver. See the discussion in Curtis v. State, 284 Md. 132, 395 A.2d 464 (1978). As to other matters, however, "[tjactical decisions, when made by an authorized competent attorney, as well as legitimate procedural requirements, will normally bind a criminal defendant.” Curtis v. State, supra, 284 Md. at 150, 395 A.2d 464.

Foster, 305 Md. at 315-16, 503 A.2d at 1331 (footnote omitted).

27 . Adams and the State make the same legal error throughout their respective briefs. Both argue “special circumstances” as if § 7-106 applied to the analysis of the waiver arguments in this case. As noted above, § 7-106 does not apply here. Therefore, we shall treat Adams’s contentions as if he were arguing in support of an exercise of our discretion to excuse his waiver.

28 . The use by Adams and the courts below of the word “bar” overtaxes its proper definition. "Bar,” used as verb, means "to prevent, especially by legal objection.” Black's Law Dictionary 158 (8th ed.2004). There was nothing to "bar” Adams from raising objections to the jury instructions. Nothing prevented Adams from making this objection known to the trial court immediately after the jury was given the instructions. At best, Adams’s contention should be understood as asserting that had he made a proper objection in this regard, the trial court likely would have overruled his objection. Assuming that to be the case, Adams hardly was "barred” from making such an objection and preserving it for appeal. There is nothing in this record, however, to indicate that such an objection would have been futile. See Bobbitt v. Allied-Signal, Inc., 334 Md. 347, 354, 639 A.2d 142, 145 (1994) (holding that objection is not futile in absence of evidence in the record of impatience or oppressive conduct on the part of the trial judge).

[Tjhere must be an objection to the instruction; the objection must appear on the record; the objection must be accompanied by a definite statement of the ground for objection unless the ground for objection is apparent from the record and the circumstances must be such that a renewal of the objection after the court instructs the jury would be futile or useless.

Gore v. State, 309 Md. 203, 209, 522 A.2d 1338, 1340 (1987)

Furthermore, both Stevenson and Montgomery were decided relatively contemporaneously with Adams’s trial. Had a proper objection been made and overruled, merit in the objection may have been found by the trial court or an appellate court.

29 . The novelty exception to waiver in federal habeas proceedings and the "cause and prejudice” standard is sufficiently synonymous with the types of factors we consider in deciding whether to exercise our discretion that these federal cases may serve as persuasive authority.

30 . The Supreme Court also had occasion to discuss the "judges of the law” provision in the Maryland Constitution, noting that it "does not mean precisely what it seems to say.” Brady v. Maryland, 373 U.S. 83, 89, 83 S.Ct. 1194, 1198, 10L.Ed.2d 215 (1963).

31 . Justice Story's opinion "had a far-reaching influence in diverting the current of American judicial opinion away from the doctrine that juries in criminal cases are judges of the law.” Slansky v. State, 192 Md. 94, 102, 63 A.2d 599, 602 (1949), superceded by statute, Wilson v. State, 239 Md. 245, 210 A.2d 824 (1965). One distinguished Maryland judge described it as "never reversed, never modified and often cited with approval.” Samuel K. Dennis, Maryland’s Antique Constitutional Thom, 92 U. PA. L. REV. 34, 38 (1943).

32 . Dennis also served as U.S. Attorney for the District of Maryland and President of the Maryland State Bar Association.

33 . State v. Jenkins, 307 Md. 501, 515 A.2d 465 (1986) (discussing the distinction between intent element in assault with intent to maim compared with assault with intent to kill).

34 . The Court in Walker essentially held, without any significant analysis, that the holding in Franklin v. State, 319 Md. 116, 571 A.2d 1208 (1990), would be extended. Franklin, however, is distinguishable from both Walker and the instant case. In Franklin, we reversed, on direct appeal, a conviction of assault with intent to murder, because of a jury instruction that we held to be erroneous in State v. Jenkins, 307 Md. 501, 515 A.2d 465 (1986). We reversed the conviction, despite the fact that there was no objection to the instruction, using plain error review.

35 . The defendant’s trial in Oken ended in January 1991.

36 . In 1986, the General Assembly prospectively limited prisoners to two post-conviction petitions. Mason v. State, 309 Md. 215, 217-18, 522 A.2d 1344, 1345 (1987). The General Assembly reduced that allowance to one petition in 1995. Grayson v. State, 354 Md. 1, 4, 728 A.2d 1280, 1281 (1999).

37 . Adams merely argued that there was insufficient evidence for the jury to find that the crimes occurred in Maryland.

38 . McBurney v. State, 280 Md. 21, 371 A.2d 129 (1977).

39 . It is of no import that Adams contends that the jury instruction may have confused the jury or "undercut” his defense. See Pennington v. State, 53 Md.App. 538, 551, 454 A.2d 879, 886 (1983), vacated on other grounds, 299 Md. 23, 472 A.2d 447 (1984) (declining to review, under plain error review, allegations that jury instructions were confusing).

40 . At the time of this discussion, Adams's counsel was waiting on a ruling on a motion for acquittal where he had argued that there was insufficient evidence for the case to go to the jury. The motion was later denied. The Court of Special Appeals affirmed on direct appeal, holding that there was sufficient evidence from which a reasonable jury could find beyond a reasonable doubt that the crimes occurred in Maryland. That issue has been finally litigated and is not before us here.

41 . There is a basis for a tactical decision to permit the trial court to instruct the jury on § 465. The instructions to the jury were clear that they were to consider first whether the rapes occurred in Maryland. If they could not find that beyond a reasonable doubt, only then were they to proceed to potential jurisdiction under § 465. If the jury found jurisdiction under § 465, it necessarily would have found a reasonable doubt that the rapes occurred in Maryland. On appellate review of a conviction, Adams would be in a better position with a conviction with jurisdiction founded on § 465 than a general verdict. If the review was of a general verdict, the case likely would be remanded for a new trial because any appellate court would be unable to discern whether the jury verdict was based upon an impermissible interpretation of a venue statute. If the verdict was based on a special verdict under § 465, Adams would have a valid argument that the conviction should be reversed and remanded with instructions to the trial court to enter a verdict of not guilty because, by addressing § 465, the jury necessarily would have found that there was a reasonable doubt whether the rapes occurred in Maryland. Adams could argue such a finding mandates that a judgment of not guilty be entered in his favor. Jeopardy would have attached, and Adams would be free from re-trial by the State. This, of course, would be a far better result than the remand for a new trial based on the general verdict because Adams, a defendant accused of brutal and violent crimes and relying on a technical jurisdictional defense, would again have to face a jury of his peers. That the jury found that the crimes actually occurred in Maryland does not alter our analysis of the possible tactical nature of Adams’s trial counsel's decision. “We are, however, without authority to review errors in trial tactics of defense counsel or to speculate as to possibilities that different tactics might have produced a different result.” Madison v. State, 200 Md. 1, 8-9, 87 A.2d 593, 596 (1952); see also Vickers v. State, 320 Ark. 437, 898 S.W.2d 26, 28 (1995) (“[Mjatters of trial tactics and strategy ... are not grounds for post-conviction relief.”); Strickland, 466 U.S. 668, 690-91, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (“[SJtrategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable....”).

Furthermore, that the jury was instructed on the special verdict only increases the potential for a "compromise verdict” regarding jurisdiction. If a compromise verdict were to occur, finding jurisdiction based on § 465, it could have set in motion the wheels leading to Adams’s outright acquittal. Adams may now claim that the special verdict and jurisdiction instruction were improper and he suffered prejudice; however, at the time of the trial, it may have been the only trial tactic that possibly could have resulted in an acquittal in spite of the substantial evidence of his guilt. This Court will not find counsel to be ineffective where there is a reasonable tactical basis to support trial counsel’s actions. See Oken, 343 Md. at 283, 681 A.2d at 43 (holding that to succeed on a claim of ineffective assistance of counsel, a petitioner must "overcome the presumption that the challenged action might, under the circumstances, be considered sound trial strategy”).

42 . In the typical Strickland analysis, we would review evidence against the petitioner to determine if, but for counsel’s errors, "substantial possibility” existed that the result of the proceedings would have been different. Bowers v. State, 320 Md. 416, 426-27, 578 A.2d 734, 739 (1990). In the instant case, however, we shall not consider the substantial evidence indicating Adams’s guilt because the result of his trial would have been different if he was able to raise a reasonable doubt that the "vital” element of the crime of rape, the proscribed harmful physical contact with the victim, occurred in Maryland. West, 369 Md. at 158, 797 A.2d at 1283.