Waiving a Claim of Waiver in COSA

By Steve Klepper (Twitter: @MDAppeal)

On August 3, the Court of Special Appeals reported an opinion of the kind that gives attorneys anxiety attacks. In Hayes v. State, the Court addressed a consolidated appeal involving two jointly tried co-defendants, Hayes and Winston. Both claimed on appeal that the circuit court failed to ask necessary voir dire questions under Kazadi v. State. The State conceded that both defendants preserved the error, and that both were entitled to a new trial. But the Court of Special Appeals originally held, contrary to the State’s concession, that only Winston preserved the issue for review on appeal, and that Hayes therefore was not entitled to a new trial.

On Hayes’ motion for reconsideration, however, the Court issued a revised opinion holding that “Hayes did raise the issue before voir dire ended, if just barely,” by handing the trial judge a written request for the same questions that Winston requested. The Court lamented that Hayes’ “tactical approach does not represent best voir dire practice,” and that “it took more than 4,000 words worth of analysis to reach the conclusion, as we now do, that Ms. Hayes preserved her Kazadi claims.”

The Court engaged in this 4,000-word analysis because it held itself obligated to ensure that the matter was preserved under Rule 8-131:

We can dispose quickly of [Hayes’ argument] that the State’s concession that Ms. Hayes had preserved the Kazadi argument waived any  preservation objection. The State’s concession of error does not bind us. Coley v. State, 215 Md. App. 570, 572 n.2 (2013) (an appellate court is not bound by a party’s erroneous concession of error on a legal issue). Under Maryland Rule 8-131, we “will not decide any [ ] issue unless it plainly appears by the record to have been raised in or decided by the trial court….” 

The Court deserves credit for recognizing on reconsideration that Hayes preserved her claim of error. Nevertheless, I believe that the Court should have begun and ended its analysis with the State’s waiver of any preservation challenge.

Simply put, a claim of waiver may itself be waived. This rule applies at the trial court level, in both criminal and civil cases. Conyers v. State, 367 Md. 571, 595 (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.”); Boyd v. Bowen, 145 Md. App. 635, 667 (2002) (“by not raising the issue of waiver of an affirmative defense in the trial court, the appellant failed to preserve it for review”); Md. Rule 2-323(g)(18) (requiring civil defendant to plead waiver as an affirmative defense).

Similarly, when the Court of Appeals grants certiorari on an issue after the Court of Special Appeals has held that the issue was preserved, a respondent waives any preservation challenge by failing to include that argument in a cross-petition. State v. Williams, 392 Md. 194, 227 n.11 (2006) (“By not himself contesting the issue and its waiver status in a cross-petition, the respondent has not preserved the issue of waiver for our review.”).

The Court of Special Appeals does not appear to have previously decided whether a preservation challenge may be waived. Neither Coley (cited by the Court of Special Appeals in Hayes) nor the cases cited by Coley involved a preservation challenge.

But it would be incongruous to hold that the Court of Special Appeals is the only Maryland court where a party cannot waive a claim of waiver. It would also be at odds with the decisions of federal intermediate appellate courts. See, e.g., United States v. Doe, 239 F.3d 473, 475 (2d Cir. 2001); United States v. Rhodes, 253 F.3d 800, 804 (5th Cir. 2001); United States v. Schlesinger, 49 F.3d 483, 485 (9th Cir. 1994) (“This court will not address waiver if not raised by the opposing party.”); Fagan v. Washington, 942 F.2d 1155, 1157 (7th Cir. 1991) (“The state’s lawyers … have, as so often before, waived waiver.”).

Practically speaking, moreover, Hayes helps to show why appellate courts should not be looking for waiver where the appellee concedes preservation. Appellate records can be large, and sometimes incomplete. The objection may have been made in a bench memorandum, not filed with the clerk, and the appellee’s failure to challenge preservation can lead the appellant not to file an unnecessary motion to supplement the record.

It may well be that Hayes is different from the ordinary appeal, because of its unusual posture. Kazadi was decided during the pendency of Hayes’ appeal, and it applied to “any other cases that are pending on direct appeal when th[at] opinion was filed, where the relevant question has been preserved for appellate review.” Thus, it’s possible that the Court of Special Appeals saw Kazadi as requiring an appellant to make an affirmative showing of preservation on this particular issue.

At bottom, preservation is about the adversary process. In the ordinary appeal, the Court of Special Appeals—like the Court of Appeals, Maryland trial courts, and federal intermediate appellate courts—should leave it to the adversaries to raise claims of waiver.

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