*1 893A.2d 1018 Kеnneth ABEOKUTO v. Jamaal Maryland. STATE 129, Sept. Term, 2004. No. Appeals Maryland.
Court
Feb. 2006. April Reconsideration Denied *8 Braudes, Michael R. Asst. Public Defenders (Nancy S. Forster, Defender, Public and Allison E. Pierce and Brian L. Zavin, Defenders, Asst. Public brief), on Baltimore, for appel- lant. Lisie, (J.
Annabelle L. Asst. Attorney General Joseph Cur- ran, Jr., Attorney general of Maryland, and Edward J. Kelley, General, Asst. Attorney brief), Baltimore, for appellee. Argued BELL, C.J., RAKER, before WILNER, CATHELL, HARRELL, GREENE, BATTAGLIA and JJ.
HARRELL, J. In this direct appeal by Jamaal Kenneth Abeokuto (Appel- lant) of his conviction by the Circuit Court for Baltimore (and County for first-degree crimes) murder other and
299 death, to consider sentence of we are asked primary resultant following questions: err in determining Appellant’s 1. Did the trial court at the right of his constitutional to a trial by waiver knowing voluntary? guilt/innocence phase was Appel err in evidence of admitting 2. Did the trial court post-Miranda1 warning silence? post-arrest lant’s err it denied re- Appellant’s 3. Did the trial court when for prepare for continuance to new counsel to quests permit sentencing hearing? trial and the err suppression Appel-
4. Did the court when it denied statement, his suppress given lant’s motion to without Miranda warning, at the Homicide Unit? err it suppression Appel-
5. Did the court when denied suppress clothing police lant’s motion to his taken while he was at the Homicide Unit? suppression
6. Did the court err when it determined that car Appellant’s the issuance of the warrant to search was cause? supported by probable Did the trial court err in sentenc- accepting Appellant’s
7. ing jury waiver? illegally
8. Did the trial court increase sen- Appellant’s tence for extortion? admitting
9. Did the trial court err in into at the evidence sentencing hearing testimony expert of a medical when opined psy- he had lied about symptoms chosis? in admitting
10. Did the trial court err victim’s impact testimony by family victim’s members?
11. death sentence be as a Appellant’s Should reversed prosecutor’s closing argument result of the at the sentenc- ing hearing proceeding when he stated that the trial court proceeding? would be final Arizona, 1. L.Ed.2d Miranda 384 U.S. S.Ct. (1966). separate Did the trial court err in sentences imposing and child kidnapping kidnapping? for separate the trial court err if it in fact found as 13. Did that the victim taken in the circumstances aggravating and that kidnapping course of an abduction or victim *10 3—503(a)(1) § a in violation of was child abducted Article? Criminal Law Did trial court err in into evidence at the admitting
14. from sentencing hearing handgun Appellant’s recovered car? alleged
15. Did the cumulative effect of the errors deprive sentencing hearing? of a fair trial a fair and/or allege principal- 16. the failure of the indictment Should ship aggravating precluded and circumstances have of a sentence of death? imposition Is the statute unconstitutional Maryland penalty death requires aggravating because it circumstances out- mitigating only by preponderanсe circumstances of weigh the evidence?
I.
A. Abeokuto, Kenneth found Appellant, guilty, Jamaal a bench trial in the for Baltimore following Circuit Court murder, assault, first-degree first-degree of: County, kidnap- and child of his ping, kidnapping girlfriend’s eight-year old extortion; and, Monyai Marciana daughter, Ringo; wearing injure. the intent carrying dangerous weapon openly with trial, According to the State’s evidence Abeokuto abducted Marciana on 3 December took her to a area in wooded her County, by slitting Harford killed her throat and kicking her head.
After for charging County, Harford Circuit Court County granted Appellant’s request change Harford for a venue, citing County, in Harford and trans- pre-trial publicity County. ferred the case to the Circuit Court for Baltimore elected to his to trial Appellant separately right by waive both and, sentencing by jury. he tried Accordingly, was after being guilty, found sentenced the court. On 15 2004, the court open November sentenced him in court as conviction; follows: death for the murder sentenc- merged for ing the first assault purposes degree count with the murder count; incarceration, years ten to be from the initial served (24 2002), date of arrest December for extor- Appellant’s conviction; thirty tion years imprisonment kidnap- for the conviction, extortion; ping consecutive to the sentence for deadly conviction, three for the years weapon to be served sentences; consecutive to the extortion and kidnapping twenty years to be served for child to run concur- kidnapping, extortion, rently with the sentences for the kidnapping, and deadly convictions. At the weapon sentencing hearing, the stated, murder, court as to the sentence for that it found two statutory aggravating circumstances proved beyond a reason- doubt, able and child kidnapping kidnapping. The court found *11 evidence, as a mitigator, by a preponderance of the Appellant had not been found guilty of a crime of previously Penultimately, violence. the court determined that the State proven beyond had preponderance the evidence that the aggravating circumstances the outweighed mitigating circum- It stances. therefore imposed sentence of death for Marciana’s murder.
In the trial judge’s required he Post-Sentencing Report, that, stated he although found at the sentencing proceeding circumstances, aggravating two kidnapping and child kidnap- he to ping, clarify that although “wish[ed] evidence names Kidnapping and Child Kidnapping, fsic] Court considered one as the Kidnapping aggravating circumstance.” The sen- tence of ten for the years extortion conviction later was amended in the Commitment Report and the Trial Judge’s Post-Sentencing Report to reflect that it was to be served consecutive to the sentence for the murder conviction.
B. presented State’s evidenсe at suppression hearings facts: following revealed the on 12 and 13 November 2002, Officer 3 December 4:45 p.m. At approximately Police City Department Baltimore Petryszak of the Joseph C, Road, because he Apartment to 5300 Leith responded he missing. Marciana was When report received a Milag Marciana’s parents, he found apartment, at the arrived Sr., Petryszak present.3 Officer Ringo, White and Marc ro class at a who, attending at the time was Appellant, called school, that he come requested driving truck commercial and drove request to the Appellant agreed apartment. to the arrived, Petryszak two he Officer himself there. When minutes in for about five Appellant questioned other officers to response In Officer apartment. in front of the the stairwell him Marciana had told Appellant Petryszak’s questions, a.m., came back around 7:35 around 7:30 to school walked While a.m., signed. needed her homework and said that she trip. a note about a field he noticed her homework signing school, which, back that he drove her then said Appellant noted, from the just across street Petryszak Officer that he her dropped further Appellant explained apartment. doors, bus yellow noticed a school the school’s front by off then, it, around teachers and students there with parked Marciana inside to see went waiting without whether of Loch school, alley block through drove to work. way Raven Boulevard on his gave he sought suppress all of the statements that Appellant 4 December which a.m. and 5:10 a.m. on police between 3:42 any giving Appellant Miranda police were obtained before during contending were made the course warning, that the statements sought suppressed interrogation. to be The statement of a custodial gave subsequent two evidence at trial. was admitted as *12 Unit, giving were obtained after at the Homicide which statements warnings. did not offer these two state- Appellant The State Miranda trial, reveal the contents of at nor does the record ments as evidence those statements. brother, Ringo, lived with Ms. younger Marc Jr. 3. Marciana and her separated City. White was from apartment in Baltimore Ms. White in an murder, father, Ms. White Ringo. At the time of the children’s Mr. relationship Appellant. with was involved in a romantic and Petryszak Appel- initial Officer questioning, After this later, a Twenty sergeant minutes apartment. lant entered the hallway to the to come back out Appellant at the scene asked and speak to with him Officer apartment outside in Appellant of the noise Petryszak apartment. because repeated his again cooperative. Appellant and was obliged Meanwhile, and officers the sergeant earlier statements. the apart- for coordinated a search Marciana canvassed No Miranda to warnings Appel- complex. given ment were that lant at time. of the Persons Timothy Missing
Detective Rabbit Unit Petryszak Police asked Officer City Department the Baltimore White, to Ringo and Mr. his unit. transport Appellant, to Ms. that at the Appellant advised the detectives Petryszak Officer gather wanted to talk with him to more Missing Persons Unit okay again cooperative. said and was Appellant information. Ringo Ms. Mr. Appellant, At about 8:00 White and were p.m., (about Missing to the Unit transported separately Persons in marked cars. fell away) asleep minutes police Appellant Greene, a came way. neighbor, also to the Ms. Constance to Missing Persons Unit be interviewed. arrived, Petryszak Appellant Officer to they
When escorted Rabbit, him Detective who interviewed in a small interview room. The door shut and no officers waited outside. Petryszak, he had told Appellant repeated what Officer stated that he at at morning also arrived work 8:00 a.m. emotion, as Detective Rabbit described without not interview, key,” After the upset, “very cooperative. low other Appellant was escorted to one unit’s interview White, Rabbit Ms. rooms wait while Detective interviewed These took Ringo, place Mr. and Ms. Greene.4 interviews office Mr. told Ringo Detective Rabbit’s cubicle. Detective usually Rabbit that he Marciana the 7:30 7:45 a.m. saw frame, morning time but he did he came to pick when Marc, up Jr. The door the interview room where Appellant Appellant’s police get into car 4. Ms. Greene told that she saw Marciana morning. a.m. 8:05 *13 waited alone and following his interview was closed locked. Rabbit that secured in explained Appellant Detective was room his own safety. for then
Appellant by police was car to transported marked City Department Homicide Unit the Baltimore Police on 3 between 10:30 and 11:00 December 2002. Detective p.m. Rabbit called Homicide Unit to become involved because he that may was alarmed Marciana have been kidnapped The abducted. detective became suspicious Appellant also demeanor, statements, record, his because of criminal factual discrepancies between his and Ms. Greene’s state- ments. Ms. White and to Ringo Mr. were driven the Homi- cide Ms. Unit White’s father.
The officers and arrived Appellant at the Homicide at Unit about p.m. Appellant 11:20 escorted to an was interview room evening, where he remained for the when he except was bathroom; interviewed elsewhere in the offices or went to occasions, on those latter he escorted according was normal police to the practices. The door room remained interview Greene, After first Ms. open. interviewing White and Ms. Keith Hagan Detectives and Robert Patton Appel interviewed sergeant’s lant in a at office. The interview 3:42 a.m. began and ended 5:10 a.m. on 4 December interview tape transcript was recorded and a Appellant created. was Miranda not given prior warnings making these state Appellant previous ments. recounted his that statements Marciana went to school at 7:30 a.m. on 3 December Marc, a.m., that, to Mr. car Ringo’s Jr. walked at 7:40 as work, Appellant leaving apartment go to Marciana came back and said that needed she her homework signed. homework, He he signed said that her told that he her would school, drive her to and then did so span within a of two Appellant minutes. he stated that “carried ... [Marciana’s] just out to the car and came me.”5 bookbag she with Then Appellant told the that detectives he drove to via Inter- work judgment acquittal closing argument, 5. At the motion for its the State referenced this statement. Aberdeen, from Ms. Maryland, apartment state-95 to White’s a little after Baltimore and clocked into City, northern work Rabbit, 8:00 Like the homicide detectives a.m. Detective to work quickly could have driven so doubted route, of morning. Appellant at that time especially and drove p.m. said he left 1:00 approximately work at *14 to the truck apartment, proceeding back to Ms. before White’s school, he there. While pick to a book that had left driving up inside, he used there, keys his car so apartment he locked meet him to Ms. who to neighbor’s phone agreed call White work, cab at College. at her He called a place Goucher take It 3:00 p.m. just p.m., about 1:30 to him there. was after detectives, he Appellant told the at the truck when arrived school, ATM borrowing keys after Ms. White’s driving card, driving the cab to the and then taking apartment, back to his school. interview, Appel-
At in the alerted point this detectives work, lant time time at discrepancy to a with his card which punched p.m. indicated that the card had been out at 1:35 3, and it to the compared December caller identification that to call Ms. White telephone Appellant feature used work, at to placed which that the call her had been indicated The to looks p.m. explained 1:28 detectives him that: “[i]t like something there’s on here” and better let us going “you shit, further, that find anything know about because we out then like a in this you’re going looking pilme suspect be Appellant admitted that a co-worker eventually stuff[.]” had his card for him at Dwayne punched named work afternoon, but had himself clocked a.m. Detec- morning suspicious. at 8:00 The detectives were Patton, tive asked describe suppression hearing when at the interviews, Appellant’s demeanor during replied: first, us, you At he sort cooperative, trying help defensive, it, talking, with and then as we started he became responses point. became—his sort of—weren’t to the were sort of He re- beating He was around bush. wasn’t to the sponding with direct we were responses questions him. asking
A second interview of Appellant occurred at 2:00 on 4 p.m. December 2002. preceded This was by Appellant being given Miranda his first warning. He was asked to take a polygraph in conjunction test with this He agreed interview. and the took place. interview His interview after occurred detectives had administered a polygraph examination of Ms. White.6
On the prior evening, December Detective Rabbit for and applied was issued a search Appellant’s warrant for car. The first search was conducted around 7:25 a.m. on 4 A December 2005. second search was conducted around 7:15 p.m. that same A day. lab technician and the homicide detectives participated the searches. During the first search, they found nine millimeter handgun and a clip with fifteen rounds in a compartment in the trunk of the car. The second search produced receipt for the purchase from a Wal- store, mart dated 3 December of a pair Backwoods jean Blues pants, waist receipt was found 40/inseam lying on the back seat behind the driver’s seat.
An earlier sweep grounds search of the and improvements of Ms. White’s apartment complex by police department train- (located ees recovered a blue bag Wal-mart at an area behind a dumpster) that contained a pair of previously worn blue jeans a pair and white both gloves, of which appeared to be stained with blood. labels for Paper jean Backwoods Blues pants, waist were also contained in the bag. 40/inseam brought detectives Ms. toWhite to processing bay see if identify she could the bloody clothing. She identified the clothing Appellant’s. as The detectives then recalled that the jeans Appellant was at wearing police new, station looked “more or less off right hanger.” discoveries,
In response to these the detectives returned to Appellant’s interview room in the Homicide at about Unit 8:55 on 4 p.m. December 2002 and asked him to show them the jeans. Patton, label on his According to Detective Appellant all, “did not react at up, stood and pants,” unbuckled his 6. The record polygraph does not reveal the contents of this interview. revealing paper label that was consistent with a sewed-in from the bag in the recovered labels contained Wal-mart Detective Patton apartment. Ms. White’s dumpster near jean pants to he was give police asked Appellant and a crime lab technician were wearing. The two detectives door Without a open. and the room was present interview word, taking After off his Detec- Appellant complied. pants, be a smear of blood on appeared Patton noticed what tive socks, for rest Appellant one of and so asked Appellant’s In off his and response, Appellant of his took clothes clothing. given jumpsuit laid them on the table. He was and shoe covers wear. 2002, Appellant again given
At 9:15 on 4 December was p.m. a Miranda warning agreed questions. and he to answer Thirty minutes into that invoked his questioning, Appellant silent ended.7 right Appellant remain and interview Instead, placed not under arrest at that time. he was was to mother’s 12:00 a.m. on 5 December driven his house around Patton and his partner. Detective following The State’s evidence trial revealed the addition- al facts: 2001. Their
Appellant began dating early Ms. White initially year concluded later relationship approximately felt Appellant “pulling because Ms. White his men weight financially.” ... Ms. dated other after she White including a Mr. Brown. In Appellant separated, Julian Ms. rekindled their Appellant November White time, At that worked relationship. part-time at C & Wholesalers, Aberdeen, Maryland, S located attended effort part-time vocational school in an to earn a commercial into planned license. Ms. to move truck-driving Appel- White *16 of 2002. the preceding lant’s house in mid-December Over weekend, after Ms. White’s cell Thanksgiving borrowing Ms. calls phone, Appellant telephone confronted White about again, 7. Here the contents of this interview arc not revealed in this record. that she had made to Mr. Brown earlier that November. matter, and, They discussed the White, according Ms. “moved on.”
Appellant children, was close with Ms. White’s Marciana and Marc Ringo, Marc, Jr. Marciana and Appellant Jr. called “Daddy-mall” and would run to greet him they when heard him at their front door. Appellant would often stay overnight at Ms. White’s apartment, sometimes bringing his daughter, Brianna, with him. With Ms. permission, White’s Appellant would take her children to doctors’ appointments, Marcia- help homework, na with her attend PTA meetings, and transport Marc, Jr. to football practice. He continued to help with the parenting Marc, Marciana and Jr. during period of time when he and Ms. Ringo were not dating. Ms. Ringo listed Appellant as an emergency contact for Marciana at school and did not remove his name from the during list the period when they were not dating.
Ms. White was separated father, from the children’s Mr. Ringo, who would come to Ms. apartment White’s to take Marc, daycare Jr. to and take the children for visits with his family. When Appellant try would to speak with Mr. Ringo, Mr. Ringo would not respond.
On the night Marciana, before the murder of Appellant visited Ms. White at her apartment. He upset was and told her that just he had learned that a good friend of his had been murdered. Ms. White comforted him. Appellant stayed over that night and slept Ms. White’s bedroom while Marciana Marc, slept Jr. beside them on a mattress on the floor.
On 3 December Ms. left White for work around 7:10 a.m. Appellant was still in bed at that time and the children getting were for ready school. When Ms. White called home a.m., from at approximately work 7:35 Appellant told her that Marciana had left for school and that he was for waiting Mr. Marc, Ringo pick up Jr. and take him daycare. At 7:40 a.m., Mr. Ringo called to say that he waiting was outside for Marc, Marc, Jr. sent Jr. outside. a.m.,
At 11:00 when Appellant supposedly at his place work, he called Ms. White at her work to remind her to look *17 Marc, in daycare facility anticipation changing into Jr.’s to bank According to house. Appellant’s their move upcoming p.m., Appel- at around 12:30 tape, a surveillance records and that he purchase jeans card to lant his debit used the Homicide Unit at a Wal-Mart wearing questioned when Aberdeen, workplace. Appellant near his Maryland in store tell her that he had p.m. at 12:43 again called Ms. White inside. mistakenly keys and locked his to her gone apartment employ- place he meet her at her would They agreed He arrived a ment, keys. to borrow her College, Goucher his clothes. After borrow- wearing 2:00 work p.m., little after cab, for the get money pay ATM some ing her card the hour to He returned within keys. left her Appellant with keys. her restore to Ms. White fact, school that Ms.
Marciana, day. did not attend When 4:45 she found p.m., home from work around White returned teacher machine from Marciana’s answering on her message police called the while Ms. White neighbor to that effect. A Appel- then daughter. telephoned for her Ms. White searched missing. He told him that Marciana was lant at school and spoke neighbor, Ms. White to another way, “No no.” replied, Greene, Marciana said that she had seen who Constance asked morning. car that Ms. White Appellant’s into getting her that Marciana had come about this and he told her off signed dropped her he get home to homework to leave urging, Appellant agreed at school. At Ms. White’s apartment. Appel- school and come to her driving the truck as as lant, White, Ringo spent evening, Mr. well Ms. Person’s and Homicide Units Missing at the following day, supra. as outlined City Department, Baltimore Police jeans in the Wal-mart DNA taken from worn samples found apartment complex at Ms. White’s were bag recovered DNA taken from blood profile. Samples to match Appellant’s on the one and the blood stains worn gloves stains on matched Marciana’s bag found in the Wal-mart jeans blue hat taken from stains on Samples Appellant’s DNA profile. station, sock, matched police he had worn at the which DNA but not In Appellant’s profile, profile. Marciana’s addi- tion, Appellant’s evidence confirmed that a co-worker of caused work time card to be in around Appellant’s punched a.m. 8:00 on 8 December 2002.
On December Ms. White received letter the mail postmarked previous day, which stated: “Tell Starks I *18 in in bag put want Put men’s bathroom at Druid $5000. die, Hill Park by p.m. girl tomorrow or the dies. If she let An just say eye eye.”8 we even. for an Ms. White the gave police, letter to the who found on the Appellant’s fingеrprint matching profile letter and DNA his in a saliva taken sample from the envelope flap. body by
Marciana’s was discovered on 12 December 2002 children in walking two home from school a wooded area near the intersection of Farm Road and Road in Joppa Haverhill Harford Her frozen was County. body partially by covered snow. Forensic evidence indicated that she did not suffer instantaneous death. One of her hands leaf gripped debris that was similar to the kind of debris her surrounding body. on her Cuts hands indicated defensive wounds. Marciana died wounds, from multiple cutting including a wound to the gaping neck, and a blunt injury force to the head that occurred after infliction cutting the wounds. (FBI)
Agents of the Federal Bureau of Investigation arrest- Alabama, ed in Birmingham, on December 2002 after him a tracking hotel where he had under registered an assumed name. facts,
Additional particularly as relevant to the proceedings in implicated by the trial court the issues raised in this appeal, be in supplied analysis will our of the issues.
II. Section 2-401 of the Criminal Law Article outlines the of our It scope required capital provides, review cases. pertinent part: Ringo.
8. Starks was a nickname for Mr. (a) imposed a death sentence general—(1) In After final, Appeals the of shall Court judgment the becomes the on the record. review sentence (2) an from appeal shall consolidate Appeals Court review. verdict the sentence the with (d) In addition to by Appeals.—(1) Consideration Court of appeal, error before the Court Court any properly shall of the death sentence. imposition consider Appeals (2) sentence, the Court of With to the death regard shall determine whether: Appeals
(i) by of the death sentence influenced imposition factor; or prejudice, any arbitrary other passion, (ii) court supports by jury finding evidence § 2-303(g) under statutory of a circumstance aggravating title; this
(iii) finding the court or supports evidence outweigh mitigating circumstances aggravating *19 2-303(h) (i)(l) § and of this title. circumstances under (3) appeal, In to its under direct with any addition review sentence, the Appeals to the death Court of shall: regard (i) sentence; affirm the death
(ii) set aside remand the case for the death sentence and title; § this sentencing proceeding a new under 2-303 of (iii) the for set the death sentence aside and remand case imprisonment of the sentence to for life. modification Article, (2002, 2-401. § Criminal Law Supp.), Md.Code III. majority
A clear of the Court affirms Abeokuto’s convic by § As to be 2-401 of required tions. considered the Crimi Court, in a every penalty appeal, by nal Law Article death concludes, record, on this that the majority concurring, imposi not by passion, tion of death influenced penalty factor. of an arbitrary or other Because unusual prejudice, regard of views the members of the Court divergence among issues, however, majority there is no view ing sentencing on all of issues. That notwithstanding, those sentences shall be and vacated the case remanded to the court for a sentencing new proceeding. divergence gives rise to (1) Bell, Greene, this Judge result is as follows: Chief Judge I and would vacate the sentences based on the failed waiver of sentence, a right to have impose by view shared Court; (2) Bell,
the other members of the and Judge Chief Raker, Greene, Judge and for Judge different reasons ex pressed Judge concurring dissenting Raker’s opinion, Thus, would death. reverse sentence of a combined four members Court find some reversible error or another req affecting sentencing and a new one proceeding uired.9
As to expressed opinion, the considered dicta in this for the remand, benefit of the trial court on certain regarding of the Abeokuto, other sentencing by issues raised majority analyses Court agrees with the as to the increase in the sentence for the extortion conviction and the need to merge for sentencing purposes the convictions for kidnapping child kidnapping.
A.
Phase Issues
Guilt/Innocence
Trial by
Waiver
Jury
that the
Appellant alleges
record contains no support
for the trial court’s determination that
voluntarily
he
or know-
sentencing proceeding,
judge
9. The new
whether before a
alone or a
jury, may include consideration of the
sentence of death
accordance
weighing
aggravating
mitigating
with
circumstances
*20
standard,
State,
preponderance of the evidence
see
v.
Evans
389 Md.
456, 482-83,
562,
(2005);
179,
886 A.2d
577
Oken v.
253,
1105,
denied,
1017,
(2003),
835
cert.
A.2d
1148
541 U.S.
124 S.Ct.
2084,
(2004),
irrespective
argument
Appellant's
You it in front of the Court trial. Judge want matter right tried you your your understand have on the or innocence? guilty issue DEFENDANT: Yes.
DEFENSE COUNSEL: All right. You can waive the right to be tried front of a jury and have the Court listen to the evidence and decide whether State had proven you guilty beyond reasonable doubt. If the Judge harbors reason, doubt any upon based then the Judge would be duty you bound to find guilty. not
youDo understand that?
DEFENDANT: Yes.
DEFENSE All right. COUNSEL: Tell your us what is decision as to you whether or not want a trial Court or a jury trial on the guilt issue of or innocence?
DEFENDANT: Court. Now,
DEFENSE All COUNSEL: right. let me also add this, that it should be made clear regardless of whether you choose a Court or a jury trial on the of guilt issue innocence, if, if you are found not guilty you don’t have to worry about any further If proceedings. you are found guilty, then the next stage quite possibly will involve anoth- er choice of jury or Judge.
youDo understand that?
DEFENDANT: Yes.
DEFENSE COUNSEL: But no matter you what choose today, trial, here Court trial or jury it does impact, if we get to the next stage, on whether you want a Court trial or jury trial for that stage of these proceedings. that,
You understand correct?
DEFENDANT: Correct. DEFENSE COUNSEL: So it is my understanding this point you would want Court trial you would waive trial, your right jury to a is that correct?
DEFENDANT: Yes.
DEFENSE Very good. COUNSEL: Judge, should we also speak about the—since it is a bifurcated proceeding so that the Jury Commissioner would have some sense toas [the] guilt that, as if stage get well we or do you want to wait until after-— n think we have to waive now—I Prepared COURT: after, you? until don’t wait Yes.
PROSECUTOR: That’s fine. DEFENSE COUNSEL: I’s and him so dot our just say Let me this to we COURT: trial the if elected a you You realize cross our T’s. *22 to would have show be that the State would proof burden all of them together, all that means jury unanimously, that to a doubt and a reasonable beyond agree together, must have, you do they of proof that’s the burden certainty, moral that? understand
DEFENDANT: Yes. or myself proof That’s the same burden
COURT: have, jury in the case of a but Judge some other would that. Do understand proof. you is the burden of Yes, sir. DEFENDANT: to the election. else as you anything open Do have
COURT: that the next just clarify I would like PROSECUTOR: record, the event just so it is clear on the stage, count, murder degree is found of a first guilty Defendant the death that the seeking penalty, that the is the fact State the Defen- sentencing stage, be the and stage next would time, trial at this he still electing a Court by dant would the, to make Judge an election to make as to a or has sentencing could be to make the decision whether sentence, death, by or life and that parole life without today, you impacting you are nоt electing go forward that election at a right to make prejudicing your are not later time. I think Judge, we have covered
DEFENSE COUNSEL: Don’t Mr. you, that is fine. We all understand. that but Abeokuto?
DEFENDANT: Yes. Do you any questions [Defense Counsel] have
COURT: about that or me? No, sir.
DEFENDANT: The court concluded on the record that “Defendant has know- ingly and and voluntarily intelligently right waived his to a jury trial on the issue of or innocence.” guilt
A defendant may right elect waive his or her to a by jury by trial and instead be tried the court.10 The right to by jury guaranteed trial by Sixth Amendment to the (entitled by United States Constitution11 and Articles 5 to trial (in by jury), all criminal man prosecutions, every has a to trial an right by impartial jury may be only found (due guilty by unanimous consent of the jury), and process) of the Maryland Rights. Declaration of To properly waive constitutionally protected to trial light by jury, the defendant elect must to do so knowing voluntary waiver 365, 377-80, election. Smith 825 A.2d (2003). effectively Md. Rule 4-246 pro summarizes the tocol regarding jury guilt/innocence waiver phase of a criminal proceeding provides, pertinent part:
(a) Generally. In the circuit court a having defendant *23 right to trial shall by jury by jury be tried a unless the right (b) pursuant is waived to section If this Rule. the waiver "many, many 10. We have stated that before there exist instances where trial the before court is in the best interest of the accused.” v. Martinez State, 124, 5, 950, (1987) (quoting 309 Md. 131 n. A.2d 522 953 n. 5 Zimmerman, 11, 19, 156, (1971)). State v. 261 Md. 273 A.2d 160 may jury The defendant want to waive a trial when he feels that a jury panel composed community prejudiced of members of the will be against may especially his case. This be when the true defendant's alleged gruesome. crime publicity particularly has received wide or is may judge apt jury The defendant also feel that would be less than a negative to draw appearance conclusions from the defendant’s or Or, speech. may merely prefer manner of he the arbiter of his person laymen. fate be one trained in the law rather than twelve Whitebread, 27.03, (1986)). (quoting § Id. C. Criminal Procedure at 607 Being charged might present with the brutal murder of a small child basis to make that election. provides, 11. The Sixth part, Amendment in relevant all "[i]n prosecutions, enjoy right speedy criminal the accused shall the to a trial, public by impartial jury an of the State and district wherein the committed, crime have previ- shall been which district shall have been ” ously by ascertained law....
317 court, elect a trial by the not may the State accepted by jury-
(b) acceptance A defendant of waiver. Procedure for time before by jury any to a trial right may waive accept may of trial. The court commencement determines, of the after an examination until it waiver by conducted open the record in court defendant on defendant, court, for the Attorney, attorney the State’s thereof, that the is made know- waiver any or combination voluntarily. ingly (2004).12 4-246(a)-(b) therefore is court
Md. Rule
defendant,
open
an examination of the
required
conduct
court,
voluntarily
the defendant
to determine whether
waived
сoercion)
(with
and knowingly
intention and
duress
without
4-246(b);
Rule
jury.
his or her
to be tried
Md.
right
Hall,
178, 182-83,
507,
A.2d
509-10
State v.
321 Md.
582
133-34,
950,
(1990);
124,
522 A.2d
Martinez v.
309 Md.
(1987)
States,
742, 748,
v.
397 U.S.
90
(citing Brady
955
United
(1970)
1469,
Zerbst,
1463,
S.Ct.
Dortch v. State
Md.
A.2d 1220
we
[290
judge
fairly
intentionally
that the trial
could
find that Hall
relin-
quished
right
jury
voluntary
waiving
known
trial
his
his
act in
right.
specifically
While the court did not
ask Hall whether he understood
told,
what he had been
or whether his election of a court trial was the
coercion,
any physical
or mental
we
result
duress or
think that the
fairly
record before us demonstrates that the court could
be satisfied
requisite knowledge
jury
right,
that Hall had the
of the
trial
that the
voluntary,
requirements
waiver was
and that the
were
rule
Moreover,
Hall,
required
satisfied.
contends,
the court was not
to advise
as he
jury
process.
as to the details of the
selection
Hall,
319
unanimity
jurors
of all 12
jury,
had a
to a
that
right
defendant
that
verdict,
for
and
the
guilty
applicable
was
a
required
trial
a
trial and bench
guilt
jury
standard
for both
(2)
doubt;
open
the trial
in
judge,
a
beyond reasonable
guilty
in
the same and asked
court,
colloquy stating
a short
engaged
trial;
trial
jury
he wanted a
or court
the defendant whether
(3)
jury
his
to
on a
right
prior
the defendant had
trial
waived
(4)
and
the
(during
negotiations);
in-court
defen-
plea
occasion
had
by counsel each time he
represented
dant had been
Hall,
a
at
trial.
321 Md.
right
jury
elected to waive his
Thus,
179-83,
colloquy
the
in Hall was
In Dortch
not
error
it failed to
that the trial court did
commit
when
held
by
trial
two
inquire specifically
jury
whether
waivers
separate
by promises
by
cases were induced
or
defendants
that
facts exist-
noting
or mental coercion. While
no
physical
a
as to the
supporting
finding
ed
involuntariness
waivers
election,
finding
of the trial court’s
highlighted,
support
we
voluntariness,
defendant,
one
ex-
prompted,
that
when
trial
told
plained
jury
court what he
to be and
thought
he
judge
on three
occasions that
did not want
separate
so,
Dortch,
trial.
In we found hearing court’s that the support finding waiver did his to a voluntarily right jury defendant waived trial. Mar- tinez, 134-35, Md. at A.2d at The relevant portion hearing transcript waiver revealed Lithium, a to treat taking prescribed defendant was medicine paranoia, psychiatric psy- other schizophrenia, possibly conditions; the did not feel that he was chological defendant illness;” from stated that “presently suffering any physical Martinez, a jury he understood that he was entitled to trial. 127-28, Md. at 522 A.2d When asked 951-52. court, you voluntarily right jury “Are waiving [to
trial]?,” the defendant
“I am
replied,
a little bit nervous.”
Martinez,
We after considering the totality circum- stances, the record in the present case a demonstrates knowing and voluntary of Appellant’s waiver right jury to a trial. Defense counsel and the trial court asked Appellant a totаl of seven times whether he understood the “byte- various size,” you will, if explanations given of his rights and trial jury process. They and the prosecutor also discussed with Appel- lant the jury trial process, standard of guilt, burden of proof, of a necessity verdict, that, unanimous guilty if convicted, Appellant would have a later opportunity to choose whether to waive his to right a sentencing by jury. Appellant counsel, represented who, was prior to the 16 August 2004 had hearing, discussed Appellant with the decision whether to elect a court jury or trial. Finally, Appellant affirmed that he wanted a court trial. Hall,
As we stated in the trial court is not required to engage in a litany fixed or boilerplate colloquy with a defen- dant. No facts from the record demonstrate the court had reason to ask Appellant whether he had been coerced or threatened to waive his right to a jury or whether prosecutor, promised counsel or the defense anyone, including Therefore, exchange for his waiver. anything Appellant required in this those areas not directed to were questions court, viewing Appellant The after behavior case. (who to his clearly counsel advised waive defense assume, trial), believe, that defense jury to a did we right otherwise, coercion forcing Appellant, by counsel was a elect bench trial. have Appellant may the trial court was aware that
While a and that taking Appellant’s medication prescription been proceedings, health an issue earlier mental had been particular during failure ask anew about these facts court’s in the error at that colloquy point proceedings was not given. We look at the record trial waiver when entirety. the trial court commenced in its On June trial. Appellant’s ability as to stand competency inquiry testimony court from several medical experts, heard witness, including psychiatrist, Dr. Dean A. State’s Inouye, conducted a evaluation to determine psychiatric-forensic who *27 to stand trial. cross-examination Appellant’s competency On counsel, Inouye Dr. that he learned that Dr. by defense stated Coleman, a Baltimore De- psychiatrist County clinical at the resided, prescribed had for Appellant tention Center where medication Geodon some time anti-psychotic (the Dr. April Inouye Appellant). after 20 date examined Inouye Dr. following cross-examination of defense regarding prescription: counsel occurred Geodon Now, you DEFENSE can inform the Okay. COUNSEL: what Geodon is? Court originally
DR. INOUYE: that was Geodon medication symptoms. as to psychotic marketed medication treat Okay. DEFENSE COUNSEL: helpful It has also been to treat
DR. INOUYE: found disorder. symptoms bi-polar In your
DEFENSE discussions with Dr. Col- COUNSEL: man, prescribed psychotic symptoms? Geodon was for Disorder,
DR. For diagnosis INOUYE: this of Psychotic Specified]. N[ot] Otherwise] Okay.
DEFENSE COUNSEL: specified. sorry. DR. INOUYE: Not I’m otherwise Okay. DEFENSE Does have possible COUNSEL: Geodon side effects? It possible
DR. INOUYE: does side have effects. So, Okay. DEFENSE prescribing COUNSEL: doctor be, have to take some care in of prescrib- would terms you say, it? You don’t do it like take ing would two Tylenol? not.
DR. INOUYE: Absolutely Okay. DEFENSE aware of you any COUNSEL: Were other prescriptions, any pre- other medications that were scribed?
DR. INOUYE: I don’t Not at recall. that time. Okay. DEFENSE Did say any- COUNSEL: Dr. Coleman thing starting about him on Prozac?
DR. INOUYE: I don’t that he taking recall Prozac at the time.
DEFENSE Okay. COUNSEL: Did Dr. speak Coleman you attempting try about Heladol Mr. Abeokuto? with DR. INOUYE: No. Heladol would have been medication with far more side effects. Potential side effects. I’m sorry.
[*] [*] [*] DEFENSE Okay. up COUNSEL: Did you follow with Dr. Mr. regard Coleman with progress Abeokuto’s while the Geodon? taking No,
DR. INOUYE: I not. did *28 Okay. DEFENSE COUNSEL: mean, DR. INOUYE: You after the of our completion evaluation?
DEFENSE Like a COUNSEL: week later? Or how long it take for a would Goedon to make difference? that doesn’t work over- a medication It’s
DR. INOUYE: It not a very gradually. it If its effective works night. response medication. And anti-psychotic high potency days. for a be seen few wouldn’t drug probably to the know, true there were you or not on whether Depending the medication. Whether respond to that would symptoms That is on the medication. Mr. Abeokuto keep he could him to have caused effects that would not have side did [sic] the medication dose was presuming the medication stop I ordinarily days. take several It would sufficiently high. as I said. very gradually mean, the medication works again, the patient a clinician and truly psychotic If a were person time. Even over see over might improvement himself weeks. anti-high medicine anti-psychotic a[sic] its an
Whether then it and prescribe medicine. You have pressure blood toAnd response. if there is a beneficial monitor it to see bemay other risks outweighs the benefit what make sure that medicine. for potential either side. On 16 testify by not called to
Dr. was Coleman hearing competency concluded the the court August counsel of Dr. David examination defense after a brief staff. Waltos, associated Circuit Court’s psychiatrist with screening minute interview that after a 15 or 20 He testified there an issue” “got that he sense Appellant, disorder, but could not reach possible dissociative concerning Appellant. he spent in the brief time that with a conclusion the court found testimony, of this At the conclusion testimony presented upon to stand trial based competent reports submitted August and 16 on 22 June and medi- diagnoses, screening, medical regarding Appellant’s question directly not here does prescribed. Appellant cation competency proceeding. the outcome Appellant competent finding a minute after Literally trial elec- trial, conducted the the trial court stand *29 inquiry. The short time period between when the tion/waiver trial court finished hearing and considering testimony and other regarding evidence Appellant’s mental health and medi- cation treatment Appellant’s election to waive a trial jury suggests aware, that the court remained for jury trial waiver of it proceedings, what learned of Appellant’s mental status and medication and that the two decisions were virtual- ly contemporaneously considered. ground plowed at the competency therefore, hearing, need not replowed be at the trial jury waiver proceeding. circumstances, These same how- ever, also to differentiate Appellant’s valid jury trial serve waiver from what we shall later determine to be his invalid jury waiver, sentencing 111(B)(1) discussed at Section infra opinion. this We distinguish also the present case from the facts in Martinez because here the trial judge ignore did not an affirmative answer to a question aimed at coercion and duress. Nor does the record reveal evidence of outward symptoms or reluctance on Appellant’s part when waiving his trial right. Therefore, we hold that the trial court did not err in determining Appellant’s waiver of his right by jury guilt/innocence for the phase knowing was and volun- tary.
2. Evidence Post-Miranda Silence Admitted at Trial
Appellant argues the trial court committed revers ible error in admitting testimony at trial aby Special Agent FBI who informed the court was read Miranda warnings and chose to remain silent when arrested in Alabama on 24 December 2002.14 This testimony also was incorporated by reference into the sentencing proceeding. The testimony consisted of the following: State, 451, 456, recently weAs stated in v. 384 Md. Weitzel 863 A.2d (2004) 218, 227, 1001-02 Kosh 854 A.2d (2004), evidence post-arrest of a defendant’s silence is guilt. inadmissible as substantive evidence of his then what placed custody, the Defendant was Q: After to him? happened 24th, he morning in the early
A: He was—it was and the next County jail to the transported Jefferson go to the District Court transported he was morning appearance. on his initial magistrate before the go magistrate him to before the Q: transported And who *30 appearance? for his initial myself, Agent Ralph Transporting agents Special
A: were joined by superviso- at the courthouse Phillips we were ry Agent Jimmy Brown. Special the Defen-
Q: All And did there come a time that right. advised of his rights? dant was Yes, Special he of his rights by supervisory
A: was advised to the Agent Jimmy explaining rights Brown. After Defendant, did not wish to speak. Defendant take Q: rights place? did the advice of Where A: a place government Took inside of vehicle. state-
Q: Okay. any did the Defendant make Subsequently all? being questions by you ments without asked Shortly being rights A: Correct. after advised of his rights, that he did not to waive those a few indicating wish minute, maybe moments a before the Defendant passed, us, what, about, in asked the this all question what was his words.
Q: anyone respond question? Did to his A: indicated to the Supervisory Special Agent Yes. Brown mailing threatening Defendant that he was under arrest for extortion communications and that there also wаnted was alleged from the his involvement posters regarding State and murder. kidnapping
Q: response being And did he ever advised of have that? that, something he’d about response yes,
A: His was heard Brown, Mr. kidnapping Supervisory but not murder. if then asked the Defendant he Special Agent again Brown speaking agents his to the rights regarding wanted waive no, said he did not to waive again Defendant wish informed rights. Supervisory Special Agent those Brown him that we be of him from only questions asking would identifiers, name, just personal date of point were birth and such. that this claim is not no argues preserved State because
objection testimony. made to any Special Agent’s claim, the lack Appellant requests despite we review this objection plain at either trial or under the sentencing,15 error standard. We decline to do so. evidentiary discretionary
Our review of this
issue is
court
not
“Ordinarily,
appellate
any
decision.
will
decide
presented
to the trial
unless it plainly ap-
court]
[issue
by the record to have been raised in or
pears
decided
8—131(a)(2004);
Md. Rule
Conyers
court....”
see also
v.
State,
132, 149-51,
(1999);
354 Md.
729 A.2d
918-19
253, 262,
(1995);
Walker v.
338 Md.
658 A.2d
Bell,
178, 187,
(1994);
638 A.2d
Md.
State
*31
4-323(a) (2004) (“An
Rule
objection to the admission of evi-
dence shall be made at the time the evidence is offered or as
grounds
objection
soon thereafter as the
for
become apparent.
Otherwise,
waived.”);
State,
objection
the
is
41
Leuschner v.
423, 436,
622,
(1979)
Md.App.
(holding
397 A.2d
630
that
“[i]t
an
preserve
appeal
objection
axiomatic
to
issue for
some
must
made or a party
be
vail be deemed to have
an
waived
objection”). Although
previous
some of our
death penalty
may
cases
have
suggested
we will be less strict about the
review,
failure to
issues for
in
properly preserve
we reiterated
Conyers
“despite
special
capital
State
the
character of
case, the tried and
procedure
tested rules of evidence and
still
150,
apply.”
The rules for be that all requiring issues unfairness preventing court, rules and these in decided the raised The cases. including capital in all cases must be followed to review have exercised our discretion few cases we where error was are cases where prejudicial issues unpreserved not matter the failure issue preserve found the tactics. of trial
[*]
[*]
[*]
Court,
any reviewing
or
on this
rely
should
Counsel
them
the fact. Further-
court, to
for
after
thinking
do their
case,
more,
in a
with
penalty
have stated that even
death
we
outcome,
finality of
cannot contin-
litigation
its
potential
or
“withholding issues
ue ad
counsel
through
infinitum
each time.”
framing
differеntly
the questions
(Internal
150-51,
at 919-20
We will review claim where unpreserved unobjected “compelling, error can be characterized as ex to assure the defen traordinary, exceptional, fundamental fair Rich by applying plain dant a trial” error standard. (1993) State, 223, 236, Md. 623 A.2d mond v. (Citations omitted); 588-89, Rubin v. (1992). plain We decline to error apply A.2d claim is neither present standard case because the The trial sat as compelling extraordinary. judge properly nor Agent at issue testimony Special the trier of fact. finding light likely guilt did not effect court’s establishing Appellant’s guilt, evidence thus overwhelming *32 a unobjected-to error was not fundamental to assure Appellant object not to a may fair trial. counsel have elected as Defense It this to tactical decision. would not be wise for Court review in the claim the context of record unpreserved the Thus, goes unexplored. that appeal possibility direct where to the Appellant’s object agent’s failure to testimony precludes our review of this contention.
3. Requests Denial Continuance for Appellant argues for error in reversible the court denied for a requests lower continuance of the trial and counsel, Brown, his then sentencing by defense Warren Esq. Mr. Brown asserted that he would not be for prepared or sentencing trial without Initially, continuance. an public represented assistant defender Appellant regard with to the In charges. March defender and public Appellant’s mother informed the trial that Appellant court to planned Mr. Brown as engage privately-retained counsel to him trial Mr. represent and that required Brown a continu trial, ance to begin which was then scheduled on 6 April At hearing on 5 April the court noted that Mr. but, Brown had not entered appearance his yet, nonetheless he had been made aware of scheduled hearing and trial Upon dates. inquiry, Appellant stated that he wanted to proceed with assigned public his defender as The counsel. trial date August was re-set to 23 2004 to accommodate the conduct of competency proceeding. 16 July
On Mr. appearance Brown entered his case and the Public Defender’s Office filed motion to strike appearance. office’s The matter was considered trial judge at a hearing August 2004. Mr. Brown requested postponement of the trial because he now ex- pressed the to desire retain his own experts defense to examine the samples. blood and soil In response, the State the court it told had supplied discovery the relevant to the Public Defender’s Office and that it previously initiated no challenge the forensics at the In suppression hearings. addition, the State noted that Mr. had represented Brown in related before matters the federal district court for months prior appearance his entering present judge case. referred the matter Circuit
329 stating, the “I am request who denied Judge, Administrative point at this in time two weeks satisfied that the reasons not satisfactory.” to trial are prior for grant request to a continu decision whether the court. Ware to the sound discretion of
ance committed (2000). A.2d 794 We 759 Appellant’s request court’s to deny conclude that the decision not abuse of discretion. Over five continuance was an for in of months between the announcement Brown’s elapsed he did not enter Appellant’s (although in defense volvement July) 16 and the commencement formally his until appearance time, During whether formal August of trial Brown, Mr. the Public Defender’s represented by Office ly the forensic potential not take issue State’s Appellant did with evidence, discovery provided, for full had been until two which trial. commencement of More prior to the scheduled weeks (and Brown) over, trial Mr. received the benefit for of continuance the trial date from purposes the of preparation competency inquiry. to 23 to accommodate the April August therefore basis for the lower court’s We find reasonable to request. decision the deny likewise find no of discretion in the court’s
We abuse request for Appellant’s sentencing. denial continuance The trial court set the date of assistance sentencing with counsel, prosecutor and defense Mr. Brown. Mr. filed for with the court Brown a Motion Continuance around (nine hearing) days sentencing November before because it attention on the necessary he found difficult focus troubling case with its facts because witnesses who public develop had defender to evidence of worked with mitigating prepared hearing circumstances for as were by result of a miscommunication Mr. Brown. The trial court, request, in its stated: denying order troubled long history.
This case has a The indict- brought Jury ment was fourth Grand Harford County County case transferred to Baltimore and the assigned Norris Months Byrnes. Honorable J. trial,
went to the preparation for and Judge Byrnes was struck an trial, with prior illness necessitating transfer of the case to this Court.
This Court has had numerous hearings and an attempted selection; trial through jury there have been hearings on the competency of the Defendant. Finally, August, 2004 a court trial was concluded and the Defendant found guilty.
The dates that were set aside for the sentencing hearing, 15, 17, 2004, November 16 and have been by cleared this Court, the various witnesses and the Assignment Office and will not be postponed.
We conclude that the court did not abuse its discretion be- cause sound reasons existed for the decision.
The reasons offered by Appellant for the continuance of
trial and sentencing,
concedes,
as he
“boil down to absence of
preparation.” We
Ware,
reiterate what we stated in
“[i]f
Appellant
raising
an ineffective
claim,
assistance of сounsel
it is more properly raised in post-conviction proceedings. See
State,
Perry
204,
227-28,
274,
(1996).”
686 A.2d
285
Ware,
706,
Appellant contends that
the trial court committed
error
it
when
denied his motion to suppress all of the state
ments that
gave
he
to police at the Homicide Unit between
3:42 a.m. and
5:10 a.m. on 4 December
which were
obtained without giving
a
Appellant Miranda warning,
in
violation of his Fifth Amendment right against self-incrimina
tion. Appellant cites the following circumstances as evidence
that Appellant was in custody at the time of his questioning by
it
warning:
a
been issued Miranda
police and so should have
in
questioned
time that he had been
connection
was the fourth
he
isolated from Marcia-
disappearance;
Marciana’s
with
also
questioned
were
family
neighbor
na’s
who
house;
been
detectives;
in a station
he had
questioned
he was
for two
Missing
in
locked room at the
Persons Unit
a small
car to
transported by police
being
and one-half hours before
Unit;
at the
made him wait three hours
police
the Homicide
him; the record is un-
they questioned
until
Homicide Unit
that,
Unit;
he
to the Homicide
go
clear
offered
whether
that there
inconsis-
the detectives told
were
because
statements,
questioned
in his
that he was
as
being
tencies
and,
result,
person
Appellant’s
as a
a reasonable
suspect
custody.
himself to be in
position would have considered
that,
presumes
absent an appropriate
law
interroga
rights warning,
during
statements made
custodial
are
of a
involuntarily
tion are made
and so
in violation
Therefore,
right against
defendant’s
self-incrimination.
when
required
are
the so-
person
custody, police
is held
to issue
Mi
Miranda
warning preceding
interrogation.
called
*35
Arizona,
436, 478,
1602, 1630,
384
86
16
randa v.
U.S.
S.Ct.
(1966)
694,
freely
statement
(“Any
given
L.Ed.2d
726
course,
is, of
voluntarily
any compelling
without
influence
import
privi
in evidence. The fundamental
of the
admissible
is
lege
custody
an
is in
is not
he
while
individual
whether
warnings
to talk to
without
benefit of
police
allowed
counsel,
To
but whether he can be interrogated.”).
he was
custody
determine whether
was
when
Homicide
3:42
questioned by detectives at the
Unit between
2002,
a.m. on 4 December
standard
applicable
5:10
whether there
a formal arrest or restraint on freedom
was
degree
of the
a formal arrest.
movement
associated with
Rucker,
199, 209-210,
439, 445
State v.
374 Md.
821 A.2d
(2003)
Beheler,
1121, 1125,
463
103
v.
(citing
U.S.
California
(1983)).
3517, 3520,
1275,
this
apply
S.Ct.
77 L.Ed.2d
1279
We
by considering
surrounding
standard
the circumstances
Beheler;
1125,
3520,
463
at
103
at
77
interrogation.
U.S.
S.Ct.
at 1279. As
said in
“some
L.Ed.2d
we
Whitfield
actual
exist,
indication of custody must
such that a reasonable
person would feel he was nоt free to leave and break off police
124, 141,
questioning.”
415,
(1980)
411 A.2d
(Citation omitted);
Rucker,
209,
see also
After considering the circumstances surrounding Appel- interrogation Unit, lant’s at that, the Homicide we hold while some circumstances hint at elements, restraint or coercive we are not prepared to conclude that they rise to the level reasonable person feel would that he or she were under arrest or his or her freedom of movement restrained to the degree associated with a formal arrest. That the questioning oc- curred in a police station is not determinative of whether a custodial interrogation Mathiason, occurred. In Oregon v. Supreme U.S. Court held there custody was no and no deprivation of defendant, freedom when the a burglary sus- pect, came voluntarily police to the at station the request of the police, was told that he arrest, was not under although a suspect, and was permitted to leave the end of the half-hour interview because the defendant was not deprived of his freedom of action in any significant way. 429 U.S. 711, 714, (1977) curiam).
S.Ct. 50 L.Ed.2d (per Court stated that a non-custodial interrogation is not convert- ed merely because the took questioning place in a “coercive environment.” Id.
Any interview of one suspected of a crime by police officer will it, have coercive aspects to simply by virtue of the fact police part officer is of a law enforcement system may which ultimately cause the suspect to be charged with a Whitfield, In we concluded custody that the defendant was in at the interrogations time of the at issue in that We case. considered there following present circumstances not found in the case: defendant interrogated wing” police the "isolation station so as to be *36 interrogators; alone with only his he questioned; was the inmate he immediately was confronted with law knowledge enforcement’s of his guilt him; in order to shock the needed information from only he was permitted police to leave the station so that he could retrieving assist in and, weapon; the he was complied. Whitfield, detained once he 124, 141-42, (1980). Md. 411 A.2d to administer are not required But officers police crime. Nor is they question. Miranda warnings everyone to whom because simply to be warnings imposed requirement house, in the or because takes station place the questioning suspect. the police is one whom questioned person has been Miranda only where there warnings required are render him freedom as to person’s such a restriction on “in custody.”
Id. case, during questioning at no time was present
In the arrested, person nor do we believe a reasonable Appellant that he contrary. believe to the He was told be led to would him detectives made aware may suspect. Although become a and, fact, obtained in his statements of the inconsistencies he lеft his from him to a lie about the time an admission December, record of the on the afternoon of 3 workplace federal or type reveals no coercion questioning Nor does the record show Maryland prohibit. constitutions four times being was coerced into interviewed Appellant Nor he to his first interview at the Homicide Unit. was prior and Homicide Missing into at the Persons staying coerced at issue questioning a total of 11 hours before the Units for from the took We find no indication circumstances place.17 think a reasonable interrogation person would police questioning break off the and leave that he or she could Missing to the Persons Unit. freely. Appellant agreed go so, and did as detectives agreed police questions, He answer testified, cooperatively. answering questions When Unit, cooperatively. at the Homicide he did so first interview room, interview the door of which agreed He to wait time there. open throughout Appellant’s stood evening mother’s home the of December taken his (the Appellant pizza and soda record indicates he 17. Detectives offered and, soda), provide, police safety procedure ate one slice and drank a as record him to the restroom when he wished to use it. The escorted involuntarily from not disclose that the statements were elicited does employed by police Appellant by physical actions or their use of interrogation. methods of *37 334
after he terminated further We conclude that questioning. in Appellant custody deprived was not otherwise of his in any significant way during freedom action the relevant before hold that the trial questioning by police his arrest. We court committed no error in statements admitting Appellant’s given prior warning. without Miranda Clothing
Admission Appellant’s Appellant argues that the trial court erred it when him suppress denied his motion to the clothes obtained from Unit, at contending the Homicide that he did not consent to voluntarily the seizure. The State that responds Appellant clothes, and, gave even if it were found that he did police not, that the detectives effected a seizure properly warrantless any due to risk that evidence of blood or other matter could destroyed be or removed. We conclude that Appellant consented the search and seizure.
It is well settled that a warrantless search is per
unreasonable, subject
se
only
specifically
to few
established
exceptions,
well-delineated
one of which is a search con
Bustamante,
pursuant
ducted
to consent.
412
Schneckloth v.
218, 219,
2041, 2043-44,
854,
93
U.S.
S.Ct.
36 L.Ed.2d
858
(1973) (Citations omitted). When the
that a
argues
State
consent,
pursuant
search was conducted
it has the burden
consent,
fact,
in
proving
freely
that
given
Schneckloth,
222,
2045,
voluntarily.
Based our of the upon totality review circumstances the search and seizure of the surrounding clothes Unit, Homicide conclude that the we State satisfied its burden to prove consented to the detectives’ Appellant request III(A)(4), for the clothes. For the reasons stated in Section at the custody was not Appellant determine we supra, addition, In the record clothing. police time obtained of coercion part or force the detectives’ no evidence exposes obtaining clothing. room testified at the in the interview present The detectives them view the hearing allowed suppression clothing by jeans gave on his them label sewed-on *38 that, after stated it on the table. Detective Patton placing from the blue jean labels recovered reviewing paper the blue to in interview room he visited the bag, Appellant Wal-mart and and their brand size jeans his determine examine jeans. was the whether other forensic evidence observe Patton, Jones, and lab technician Detective a crime Detective waiting the and “asked Appellant room where was went asked see his labels on his When pants.” could we [Appellant] reaction was to this Detective Appellant’s question, what “Sir, at He and replied, up he didn’t react all. stood Patton took photo- his The pants. police unbuckled” and lowered the and the Observing of brand size of tags. the graphs bag, matched the labels found in the Wal-Mart jean pants us his cloth- [Appellant] give Detective Patton then “asked jeans, took Detective Patton no- As off the ing.” Appellant sock, stain what to be a smeared blood on a appeared ticed In remaining clothing. response, then for asked in his and “laid them on the table” clothing took off Appellant front of him. Detective Jones’ was consistent with testimony testimony regarding Detective Patton’s seizure after clothing occurred clothing. requests Appellant’s (3:42 a.m.) a.m. to 5:10 questioning subsequent initial Miranda, test, first Appellant given when polygraph recovery, the detectives asked warning. clothing After and, if after again issuing talk to them Appellant he would another Miranda him for warning, with Appellant spoke minutes before the inter- another terminated thirty conduct, his to the consented search Appellant, by view. clothing. of his seizure
Admission Fruits the Car Search of of Appellant perceives reversible error trial court’s of Appellant’s admission the fruits the search car because the warrant for search supported by probable was not cause. Police to search sought Appellant’s warrant car Rabbit, Unit, after Detective Missing ques- Persons Appellant. tioned following Detective Rabbit offered the aver- in the in support ments affidavit warrant: .of search 3, 2002 your On December affiant call for a received a missing person Petryseak [sic], from Officer 4C21. The missing child is identified as Marciano Monia [sic] [sic] (F/B/8 5/2/1994). Ringo of birth date Your affiant’s investi under gation Department Baltimore Police Central Com 02-4L01748, plain Number revealed Marciano Monia Ringo school, was last front of seen her which is located (07:35 a.m.) Loch Boulevard at 0735 Raven hours mother, missing this date. The Wight child’s Milagro [sic] (F/B/5/1977) (M/B/ advised Jamal Abeakuto [sic] [sic] 12/1979) child, last saw the who left her apartment building *39 school, to to Elementary walk Northwood School Loch Milagro Raven Boulevard. advised that Wight she contact ed the school that principal, who advised Marciano Monia Ringo did not attend school on date. this
Your affiant by was advised that Petryseak Officer he father, spoke missing with the Ringo. child’s Marc He Petryseak advised Officer that he went to 5300 Leith Road Apartment to his son pick up C and while at the location he asked Jamal Abeakuto about the location of Marciano Ringo. Monia Ringo Marc that advised Jamal Abeakuto told him that she walked school. Petryseak
Jamal Abeakuto advised Officer that the child walked to school at hours and returned home at 0740 get hours to her signed. homework Jamal Abeakuto stat- signed ed that he the homework and noticed that there was a note on the a filed page concerning trip to Port Discovery. Jamal Abeakuto that stated he drove Marciano Monia and Elementary School back to Northwood Ringo in his car doors. the front by the school in front of her off dropped bus yellow school that there was advised Abeakuto Jamal Abeakuto them. Jamal teachers around and children with Ringo enter Marciano Monia he did not see that advised in the odd alley through he drove because the school Boulevard. of Loch Raven the 5200 block side of to the school spoke she that when Wight advised Milagro Ringo Monia was Marciano she advised principal, was rather today but trip on a field go not scheduled 4, 2002. December can- surrounding areas were building apartment however, Ringo; she could not Marciano Monia for
vassed located. be Ringo wearing pink last seen Monia was
Marciano shirt, and blue coat, jeans blue and white Barbie fur white tennis shoes. car, searched executed warrant
Police thereafter in evi- later introduced items that were several recovering was including gun, which sentencing, dence at trial receipt, and Wal-mart sentencing phase in the introduced trial. at in the case-in-chief introduced State’s which was for the issuance only support that the argues Appellant the last was the fact the search warrant presented the situation Marciana and that seen person have ordinary, everyday in the affidavits an averments constitute circumstances would suspicious scenario—not Although Appel- vehicle. Appellant’s cause to search probablе hearing, the suppression lant did not attack warrant issued sua court, judge that the who sponte, found suppression this cause to issue probable “plenty had warrant warrant.” con preserved, the issue was argues
The State *40 was the of the search warrant validity that tending if the Appellant. Even by to the court suppression presented that the affidavit argues the preserved, State issue were of cause. finding probable court’s issuing the supported conclude that for preserved We issue was review, appellant despite Appellant’s object failure to at the suppression hearing, because the trial court made finding, so, albeit gratuitously judge who issued the warrant “had plenty probable upon of cause.” Based the averments affidavit, submitted Detective Rabbit in by we determine judge probable had cause to issue the issuing warrant to search car. Appellant’s The standard of applicable review of a probable “so long cause determination is: as the magis trate had a substantial basis for concluding a search [ ] would uncover evidence the Fourth wrongdoing, Amend ment Potts no more.” requires [of U.S. Constitution] State, 567, 571, (1984) (Inter 300 Md. 479 A.2d 1337-38 omitted). quotations nal and citations The finding probable cause ordinarily must be shown the four within corners of Valdez v. 160, 168, affidavit it. supporting (1984). A.2d The supporting affidavit the warrant to search car Appellant’s place indicated that last Marcia na had been seen was car and that Appellant’s Appellant had off at dropped Marciana school. The indi affidavit also cated that Marciana did not school that day. attend affidavit notes inconsistency Appellant’s another statements that raised suspicion: Appellant had told the detective that he had seen a trip note for field scheduled to take place that (3 2002), day December but Ms. White told the detective that the school had told her that principal trip field scheduled for 4 December. We therefore conclude that suppression court committed no error admitting the fruits of the car search.
B. Sentencing Phase Issues Jury Sentencing Waiver contends that the record fails establish knowing voluntary jury sentencing. waiver of The cir- *41 argu- in of his support by Appellant to pointed eumstances of assuring for the purpose questioning are: the lack of ment inducements; threats, promises, of of the absence the court health; mental de- Appellant’s as to of questioning the lack trial; trial, jury rather than a of a court urging counsel’s fense time of the sentenc- mental state at the poor Appellant’s and after the immediately it occurred colloquy because ing waiver that argues also guilt. Appellant finding Appellant’s of court’s sentencing in a of deliberation description jury the court’s to a point inaccurate confusing, and incomplete, as proceeding of a reject option it could have induced where jury sentencing. the trial the record of argues that response, the State
In
of the
as volun-
acceptance
its
waiver
inquiry supports
court’s
con-
inquiry
that the
The
contends
knowing.
and
State
tary
sentenc-
jury
to the
inquiry
comparable
ducted here was
(2002)
State,
A.2d 629
in
367 Md.
Baker
ing waiver
(1993),
Immediately by after the counsel, offered a the consent of defense prosecutor, with to be used rights litany of an advisement of version written proposal, trial court read accepted the trial judge.18 stating: litany, prosecutor written version of the offered the 18. The Honor, getting—to putting Defendant’s election on prior to Your I file sentencing, request, and would this I have an—I have litany I ask the Court to read to pleading, there that would is time, go over to would file this at this the Defendant. The state and, the litany, aloud at the end of the relatively lengthy recitation, questions asked a few of Appellant, questions which also part litany. were offered The colloquy between the court and Appellant was as follows: Abeokuto,
COURT: Mr. we have now concluded the guilt phase your trial you have been convicted of murder in the first degree.
The next phase your the sentencing phase *42 which it decided will whether the sentence to be imposed on death, the murder conviction shall be life parole, without or imprisonment. life
Your trial was conducted Judge before the sitting without a You are jury. obliged not to maintain that same election however, sentencing, for you because were tried by the Judge, you if elect to by be sentenced a jury, you will be sentenced aby jury that is selected for the purpose of sentencing you.
A jury is comprised of twelve citizens selected from the voter rolls and motor jurisdiction. You, vehicle rolls of this our attorney, with would have an opportunity to all examine jurors potential part as of the of process selecting twelve jurors. potential juror If a holds a belief either for or against capital punishment which would or prevent substan- him or tially impair her from being impartial, juror that would be allowed to a juror serve as in this case. sentence, In order to secure a death it is the obligation of the of Maryland State to prove beyond a reasonable doubt you that were a principal murder, the first degree the is, the murder by was committed your own hand and sentencing make sure that the election solely of is based on being by anything Defendant's decision without influenced the Court may may—especially have or done said that under what [sic] happened in the Tichnell case specific and Defendant's election of a way sentencer one or the other. go I would ... litany ask Court over with [to] this the Defen- the, just dant and that to make this clear for record in terms of Defendant’s election. listed in circumstances aggravating of the that one or both exists. a death penalty the notice of intent to seek beyond a proof standard of proof The same burden you elect regardless exists whether reasonable doubt If elect to be by you or a by jury. be Court sentenced of these threshold determinations jury, each by sentenced is, unanimous, jurors agree all of the must must be sentencer, jury, finds that If whether Court upon. burden, go on its the sentencer will has satisfied State exist. circumstances any mitigating to consider whether relating any circumstances are circumstances Mitigating tend to make or this crime would yourself either to lists The statute seven appropriate. sentence of death less mitigating. to be To be circumstances that are considered any of the existence of proof considered there must be circumstances evidence. preponderance these the sentencer is Court or This burden exists whether jury. circumstances that the must statutory mitigating these: consider are
One, previously guilty the Defendant has not been found violence, a of or nolo plea guilty of a crime of entered violence, a of a crime of or have a charge contendere to of stay entry judgment of or a of judgment probation charge entered on a of crime of violence. abduction, as used in the statute means
Crime violence arson, manslaughter, except involuntary escape, kidnapping, murder, or or sexual mayhem, robbery, rape manslaughter, or to degree, any attempt offense in the first or second or the in the handguns commit of these offenses use any commission felony of a or other crime of violence. two, in the Defen- participant
Number the victim was caused the or consented to the act which dant’s conduct victim’s death. three, acted under substantial
Number the Defendant duress, person, or of another but provocation domination
not so to a complete substantial as constitute defense to the prosecution. 4,
Number the murder was committed while the capacity of the Defendant to of his conduct appreciate criminality requirements or to conform his conduct to the of the law of mental substantially impaired incapacity, as result disorder, mental or emotional disturbance.
Number youthful age Defendant the time of the crime.
Number the act of the Defendant was not the sole cause of the death. proximate victim’s And, number it is unlikely Defendant will engage further criminal that would constitute a activity tо continuing society. threat circumstances,
In mitigating addition to seven listed may any the sentencer write down other fact or circum- it be That mitigating. anything you stance finds to is about or the trial make a would sentence of death less appropriate. anything relating your This includes back- ground your as well as relevant and material conduct toup and including sentencing proceeding, any this as well as causing sympathy mercy you. factor one feel toward Mercy may in and of itself be considered a mitigating circumstance. must
Again, mitigating circumstances exist prepon- derance of the evidence.
Further, factors, nonstatutory respect mitigating with too, it is that the sentencer be necessary, convinced both the fact or circumstance exists and that it is mitigating. As circumstances, mitigating with the listed this is the same whether the sentencer or a jury. Court
Unlike the matters on which the bears the State burden *44 if proof, you by jury, jury elect to be sentenced a the need not be to a respect particular unanimous with whether circumstance other than circum- mitigating mitigating exists one, they unanimously stance number which must find. circumstances mitigating the true both listed is as to This circumstances. mitigating the other jury sentencing the a of deliberation If after period of a particular existence unanimously agree the cannot circumstance, finding mitigating the jurors those mitigating determining it in instructed to consider be circumstance will the jurors finding sentence. Those appropriate the it. will not consider does not exist circumstance mitigating circumstance mitigating that no jurors agree all of the If be to enter a sentence they will instructed proven, has been death. Court, find jury, a would Similarly, sitting if the without exists, also the Court would that no circumstance mitigating a of death. enter sentence or juror mitigat- one more any
If the Court or finds that will proven, jury has been the Court or ing circumstances exist, circumstances, if those found to mitigating balance that has proven the circumstance been against aggravating doubt to whether the sen- reasonable determine beyond balancing should death or not death. same tence be jury the by is undertaken or Court. process jurors In the all balance sentencing, event of will unanimously found exist mitigating the circumstances will circum- juror mitigating each individual balance as well juror stances found exist. a jury,
Whether the sentencer the State Court of a propriety bears ultimate burden establish death sentence. sentencer, is the the State bears jury,
If court or of a sen- to establish death propriety ultimate burden tence. sentencer, that the jury,
If the whether court or concludes circum- aggravating mitigating outweigh circumstances stances, may not the sentence be death.
If circum- mitigating aggravating circumstances balance, may are be death. stances in even the sentence outweigh mitigat- if the Only aggravating circumstances *45 of ing circumstances is a sentence death to be imposеd. jury, Where the sentencer of is outcome the balance must be a unanimous conclusion of jury. for jury unanimity
The need has been noted on several If after a period occasions. reasonable of deliberation the jury agreement is unable to reach unanimously on any matter for which is unanimity required, including whether a of death imposed, sentence should be then the Court shall not impose sentence of death.
If the sentencer determines that the sentence shall not be death, then the same shall proceed sentencer to determine whether the sentence should be life without parole. or life
If the sentencer is a jury they aren’t able to reach a verdict on the issue of death within a period reasonable of time, then sentence of death shall be imposed not jury same shall proceed nevertheless consider the life question parole. of or life without If the sentencer ais jury, a parole sentence life without must be a unanimous decision.
If cannot achieve unanimity on issue of life without the possibility parole after a period reasonable deliberation, the sentence life of must be imposed. you sentencer,
If choose the Court as the then I must consider life life parole whether or without if appropriate I determine death is not the proper sentence. you any
Do have questions I concerning what have de- scribed and read to in these you instructions?
DEFENDANT: No. you
COURT: Have an opportunity had to discuss your your election with attorney, [defense counsel]? DEFENDANT: Yes. Do you
COURT. understand the various distinctions that I have for you? outlined
DEFENDANT: Yes. What is your age?
COURT:
DEFENDANT: 24 background? educational your isWhat COURT: college. Some DEFENDANT: to be sen- sentencing, for election your isWhat
COURT: jury? by to be sentenced the Court tenced Court. DEFENDANT: or [prose- counsel] questions, [defense other Any
COURT: cutor]? No. defense. No, from the
DEFENSE COUNSEL: *46 [Prosecutors]? COURT: No, Honor. Your
PROSECUTOR: file read and election Clerk, file the you would Mr. COURT: Exhibit Num- 1—Court’s Number Exhibit this as Motions ber 1. to sentence election, court proceeded the to the
According sentences, the sentence conferred, other among It Appellant. conviction. for the murder of death is a sentencing at a jury capital to a right 594, 602, 616 State, A.2d 328 Md. Bruce v. of statute.
creature
be con
(1992).
hearing shall
sentencing
392,
capital
A
396
jury.
the
the defendant waives
a
unless
jury
before
ducted
Law
Supp.) Criminal
(2002,
2004
Repl.Vol.,
2003
Md.Code
690,
Baker,
A.2d at 654
2-303(c)(3);
at
790
Article,
367 Md.
§
2-303). A defendant’s
§to
statute
(citing
predecessor
the
Baker,
Md. at
367
voluntary.
and
knowing
must be
waiver
State, 321
(Citation omitted);
v.
Trimble
690,
at 654
790 A.2d
(1990).19
examining
794,
When
248, 262,
A.2d
801
582
Md.
waiver,
voluntary
and
knowing
made
a defendant
whether
circumstances, including
the
totality
the
court considers
the
“[wjliether
State,
a defendant is to be
we stated that
Ware v.
In
360
for the defendant.”
jury is a decision
by the court or the
sentenced
(waiver
764,
(2000)
650, 704,
(citing
4-246
Md. Rule
792
759 A.2d
Md.
685,
670,
State,
651,
trial);
629 A.2d
694
Md.
v.
331
jury
Gilliam
of
(1993);
held,
602-07,
396-98).
Bruce,
We
A.2d at
at
616
and
328 Md.
sentencing
Ware,
jury
proceed with
“decision
that a defendant’s
contrary
is insufficient
light
counsel’s recommendation
of defense
Ware, 360 Md.
competency examination.”
trigger a
of itself to
in and
706,
690-91,
When
properly
defendant,
accuracy
instructed
we consider the
clarity
statement
court’s
of the law and
whether
defendant
had sufficient time to
discuss
election with defense counsel
Baker,
In
prior to the court’s inquiry.
argued
Baker
that his
waiver of
sentencing was
knowing
intelligent.
Baker,
690-91,
Md. at
790 A.2d at
He
654-55.
contended
that the court failed to mention the
proof applica
standard of
ble
balancing
to the
of aggravating
mitigating
circum
erred in
stances and
that the
at trial
stating
jury’s finding
Baker
in the
principal
degree
first
was
binding
*47
Baker,
690,
at
sentencing.20
367 Md.
they
adequately
question
had
discuss
of
argued
properly
Baker also
that the trial court did not
advise him of
20.
balancing
aggravating
mitigating
the
stances,
of
circumstances and
circum-
466,
relying
Apprendi
Jersey,
v. New
530 U.S.
120 S.Ct.
held,
2348,
(2000).
Baker,
Apprendi
347 Baker’s jury. the court or a by to be sentenced whether adequately if the were also asked court had attorneys responded the court they the advisements and that covered that he not have times] Baker also stated did had. [several to dis- opportunity that he had a sufficient any questions, not attorneys, that he did the election with his cuss to an- attorneys that his unable any questions have were making he Baker also that was satisfied responded swer. time, he could that that he that election at understood his mind, he did to have his and that not need change attorneys. election time to discuss the with his further Baker, 691, we Although Md. at A.2d at 654-55. 367 790 in that call into question found no facts Baker would mental or medication status at the time that would defendant’s the trial should ask them the judge about suggest the court Baker whether he under asked inquiry, medication, or any drugs, alcohol that would influence instructions, hear ability to affect his understand court’s Baker, the court’s questions, questions. the court’s or answer he did at at 637-38. Baker reрlied A.2d The court about and level age not. Id. also asked his proof Id. The characterized the standard of education. court mitigating to the balancing aggravating and applicable characterizing it as rather than “outweighing,” circumstances Baker, as Md. at “preponderance standard.” instruction, although this A.2d at 636. We concluded that rise to the it ambiguous, did not level that would somewhat choose to dramatically increase the chance Baker would Baker, court, than a Md. by jury. be sentenced rather Thus, at because inquiry 790 A.2d. the court’s into the voluntariness of the election instruc adequate knowledge supplied tions court given requisite election, concerning sentencing concluded the jury we to be valid. waiver Trimble, engaged analysis supra.
We in the same *48 case, because, during In we vacated a sentence death by jury sentencing at the time of the colloquy court waiver, judge the trial Trimble he “had the authori- told (if
ty” to dismiss the
it
jury
could not
decide on
sentence
time)
sentence,
within
reasonable
and
a life
impose
a state
ment
may
which
have caused Trimble to believe that he had
nothing
by electing
lose
to be
sentenced
the court.
controlling
Trimble,
262-63,
In
Thanos v.
(1993),
Md.
None of
expert
Thanos’s four
witnesses at the sentencing
proceeding ever suggested that he
incompetent
to stand
trial. While Thanos did make
peculiar
some
remarks to the
trial judge, his
words
very
whole were
lucid. He
appeared to
all of
grasp
rights
his
as they
throughout
arose
the proceedings. He explained very clearly why he pre-
ferred
conditions
Max
Super
facility in Baltimore to
those of the
Mary’s County
Center[,
St.
Detention
reason he offered for
a court
preferring
trial to a jury trial].
And he understood
insightfully
articulated his tendency
presence
attorney
21. While the
of an
to discuss the waiver election
waiver,
Baker,
tends to show that a defendant
knowing
has made a
see
mitigate
that fact will not
incomplete
an inaccurate or
court instruction
jury sentencing right,
Therefore,
on the
see Trimble and Harris.
evi-
dence that a defendant
attorney prior
discussed the еlection with an
only
the waiver is
one circumstance for us to consider when determin-
ing
voluntary
knowing.
whether a waiver is
*49
stress,
justi-
reasonably
under
which
disruptive
to become
from the proceedings.
to absent himself
fied his initial desire
Thanos,
86,
After
case,
are unable to conclude with
present
the record of the
we
knowing
made a
vol
Appellant
confidence
requisite
in
confidence
the
untary
jury sentencing.
waiver of a
Our
(or should
is undermined because the trial court knew
W'aiver
recalled)
testimony
at the
hear
given
competency
have
from
2004 that
had been
ing
Appellant
prescribed
June
medication)
(an
custody
in
at the
anti-psychotic
Geodon
while
The court
at the
County
sentencing
Detention Center.
failed
ascertain
had been tak
hearing
Appellant
waiver
whether
determination;
competency
the medication since the
ing
medication; and,
so,
if
taking
he
the
currently
whether
was
as allud
experiencing any
whether
was
side effects
as
by
Inouye,
they might impact
ed to
Dr.
at least insofar
voluntary
to make a
waiver
adversely
ability
knowing
his
This
nine
after the
determination.
competency
some
weeks
case,
facts of
inquiry,
important
line of
under the
the
effects,
to the side
ingestion may give
because Geodon
rise
others,
sedation, nausea, dizziness,
and confusion.
among
Physicians’
(60 ed.2006);
2517-20
see also
Desk Reference
Geodon,
http://www.geodon.co
Fads About
available at
m/GeoPat_FactGeo_sid e_effects.asp
infor
(providing product
manufacturer,
Inc.); Geodon,
Pfizer
by
Physicians’
mation
(2005)
informa
Reference,
(providing
Desk
We do not this sentencing knowing waiver insufficient to a and volun colloquy support waiver, tary every jury sentencing colloquy that waiver must before, inquire into mental health and medication. As stated do not or require specific litany colloquy we standard case.22 The the every necessary inquiry by court determine jury sentencing knowing voluntary whether a waiver is and is by particular bound the facts and circumstances of the case. Here, the trial court knew from the that competency hearing Geodon, prescribed had been an Appellant anti-psychotic drug that, not it surprisingly, potential carries with relevant side effects—information that could be found in the easily Physi cian’s Desk Reference.23 argues
22. also that the erred it did an court because not make finding voluntary knowing explicit unnecessary of a It waiver. is question. for tous reach this remand, guidance 23. For to the trial court on we choose to comment regarding litany point employed by the waiver on collateral the court. page description Appellant’s rights The court read a five aloud of sentencing asking Appellant standards before whether he understood daunting explication layman, them. be a This could rather even contrast, possibly anti-psychotic one not on an In medication. court, prosecutor, inquired Appellant’s and defense counsel about un- rights derstanding jury of his various seven times at the trial waiver Although explanation jury sentencing rights election. the court’s of was clear, might approach present accurate and it be a better such fault finding to a of vacate sentences due Because we Court, by four members sentencing proceeding with necessary we reach and decide the other not-strictly it is We nonetheless regarding sentencing. issues preserved however, on dicta a few guidance, to offer some choose remand, that, may in order on the trial court consider them at a recur new sen- should circumstances guidance likely it seems to us will. tencing proceeding, they as Extortion Sentence for sentencing proceeding Had not vacated the entire we waiver, we have concluded for the failure of would for the increased the sentence illegally Circuit Court it first conviction the sentence that changing extortion in an sentencing hearing to an increased one imposed sentencing At the hearing Amended Commitment Order. 2004, the for as imposed November sentence extortion follows: count, the extortion the sentence of the
COURT: As to Correction, years Department ten Court *51 arrest, date from the initial date of sentence will his which was that? was—yes, 12-24 12-24 of of—actually
PROSECUTOR: it 02. Okay.
COURT: 12-24-02. Report prepared pro- The Amended Commitment thereafter for the conviction ten vided the sentence extortion of death the to be served consecutive to the sentence for years In first-degree murder conviction. the Re- post-sentencing Trial capital pursuant of in to Md. port Judge, prepared cases 4-343, court re-affirmed its that the sentence Rule intent "bytes” inquire information to defendants in smaller intellectual "bytes” discretely "byte” logical grouping or of whether a after each them. defendant understands consecutively for extortion be ten to be served with years of the first-degree sentence death for murder conviction. (2004)provides, pertinent Md. Rule 4-345 in part: (a) Illegal may sentence. The court correct an illegal any sentence at time.
(b) Modification or reduction—Time for. The court has revisory control power and over sentence upon motion (2) filed within 90 after its ... in days imposition a circuit court, Thereafter, whether or an has appeal been filed. revisory the court has control power and over sentence fraud, mistake, in of provided case or as irregularity, (e) section Rule. The court may this not increase a sentence imposed, except sentence has been that it after correct an may evident mistake in the announcement of a if sentence correction is made the record before the defendant leaves the courtroom following the sentencing proceeding.
[*] [*] [*] (d) Open hearing. court reduce, The court may modify, correct, or only vacate a sentence on the in open record court, defendant, after from the hearing and from each victim or representative victim’s who an requests added). opportunity to be (Emphasis heard.... case,
In present the trial imposed court initially sentence for to begin extortion on 24 December 2002 and then purported subsequent papers change it consecutive sentence, (albeit with death which effected an increase one) potentially in the metaphysical sentence. This was not permitted.
Separate Sentences Kidnapping Kidnapping Child for merger doctrine offenses sentencing for *52 purposes premised part is on the Double Jeopardy Clause Constitution, the Fifth applicable Amendment U.S. state court via the proceedings Fourteenth Amendment. Dix-
353
(2001)
283,
236,
299
State,
209,
Md.
772
364
A.2d
v.
(Citations omitted).
determining
standard for
applicable
The
another
is often
offense
into
is what
merges
one
whether
State,
test,”
356 Md.
McGrath v.
“required
called the
evidence
(1999) (Citations omitted); but,
1067,
23,
20,
A.2d
1068-69
736
test,” “Blockburger
it
as the “same evidence
is also known
Dixon,
237,
at
each offense, only the latter offense in the other so included elements, the former or distinct contains a distinct element way, required anothеr into the latter. Stated merges to secure minimally necessary is that which is evidence If requires for each each offense conviction offense. [] words, not, if does or in other of a fact which the other proof not, which the other does each offense contains an element test even merger required there is no under the evidence act or acts. though upon both offenses are based the same But, proof one of an additional only requires where offense fact, all one offense in the present so that elements of are other, and both offenses are based on the same act or where acts, merger follows [ ] [ ].
When evidence test to applying required multi-pur- i.e., offenses, elements, a having offenses alternative pose to the court must examine the alternative elements relevant (Internal omitted). at and citations quotations case issue. McGrath, 23-24, 356 Md. at A.2d at 1068-69 (quoting 736 Lancaster, 391-392, 385, 453, v. 332 631 A.2d 456-57 State Md. (1993)). are required, separate When sentences merger instead, only normally precluded; may imposed a sentence be for the offense the additional element or elements. having See, Dixon, (citing 364 at at 299 e.g., Md. 772 A.2d 699, 702, A.2d Nightingale (Internal McGrath, (1988)); at 1069 Md. A.2d *53 354 omitted).
quotations
there
“[W]here
is a
of a
merger
lesser
offense,
included offense into a greater
we are not concerned
penalties—the
with
lesser included offense generally merges
into and is
by
subsumed
the greater offense regardless Dixon,
penalties.”
238,
We have not before determined whether kidnapping merges with child kidnapping. We would examine first the elements offense, of each regardless of penalties imposed. Section 3-502 of the Criminal Article Law regarding kidnapping pro- vides, in pertinent part:
(a) not, person Prohibited.—A may fraud, force or carry or cause a person to be earned in or outside the State with the intent to person have the carried or concealed in or outside the State. (2002), Article, 3-502(a).
Md.Code § Criminal Law Section 3- 503 of the Criminal Law Article regarding child kidnapping, as it stood provided, pertinent part: (a) Prohibited.—(1) A person not, may without color of right:
(i) abduct, take, forcibly or carry away a child under the of 12 age years from:
1. the home or usual place child; of abode of the or 2. the custody and control of the child’s parent or legal guardian;
(ii) without the consent of the parent child’s or legal guardian, persuade or entice a child under the age of 12 years from: the child’s home abode; or usual place or
2. The custody and control of the parent child’s or legal guardian; or
(iii) with the intent of depriving parent
child’s
or legal
guardian, or any person
child,
lawfully possessing care,
child,
knowingly
secrete
and control
custody,
age
years.
of 12
harbor a child under
3-503(a).
(2002),
Article, §
Law
Md.Code
Criminal
kidnap-
of statutory
of one count
was convicted
forcibly
“unlawfully
the Indictment:
did
(according to
ping
to be
Marciana
fraudulently carry
cause
carried
carried and concealed
with intent
have
Monyai Ringo,
[her]
”)
statutory
.. .
count of
child
and one
in or outside this State
did,
“unlawfully
Indictment:
kidnapping (according
*54
Monyai
of Marciana
color of
the consent
right, without
without
[her], a
and entice
guardian,
or
Ringo’s parent
legal
persuade
12,
custody
the
from
home and the
age
child under
of
[her]
”).
or
...
legal guardian
control of
parent
[her]
are multi-
kidnapping
kidnapping
Because both
child
offenses,
look to the alternative elements relevant
element
we
See,
Dixon,
243,
merged
required
under the
test.
evidence
Those sentences
might
merger
still
under
require
lenity
either
rule of
fundamental
principles
lenity,
fairness. The rule of
and/or
offenses,
only
which is
applicable
statutory
provides “where there is no indication that
[Legislature
intended
multiple punishments
act,
for the
same
court will not impose
will,
multiple punishments but
for sentencing purposes, merge
McGrath,
25,
one offense into
other.”
The
lenity
rule of
was originally
formulated
the United
States
Court as a
Supreme
principle
construc-
statutory
“
tion.
policy
behind the rule
‘that the
Court
will
a ...
interpret
criminal statute so
to increase
penalty
as
that it
an
places on
individual
such an interpretation
when
can be
no
based on
more than a
as to
guess
what [the
”
legislature]
intended.’
White
Md. at
U.S.,
6, 15,
A.2d
quoting Simpson v.
435 U.S.
98 S.Ct.
909, 914,
(1978),
*55
Monoker,
222-23,
at
321 Md.
582
at 529.
A.2d
Where “there
merger
is a
the rule
lenity,
under
of
the offense
carrying
lesser maximum penalty ordinarily merges into the offense
carrying
greater
McGrath,
maximum penalty.”
25,
Miles,
at
229,
357
statutes
kidnapping
and child
kidnapping
history
The
540,
Md.App.
in
23
Moore
aptly
has been summarized
(1975).
denied,
The
(1974),
between two and five the child (1888), law deleted 1888. Md.Code Article kidnapping 27, § 155. The Court of determined that the Special Appeals legislative intent behind the enactment of the first child kid- to create a for the napping special statute “was statute protection of children and to the forcible or fraudu- proscribe lent or of a child from his or her taking carrying away parent, custodian, guardian regardless or of whether the child was Maryland,” the territorial confines of a mea- asported beyond sure taken the the statute by Legislature kidnapping because at required the time that the victim be carried outside of the Moore, 546-47, at 52. In Md.App. State. A.2d amended the Legislature kidnapping statute to include iv, asportation both outside and Chapter within State. § 385 of the of 1949. Acts that neither nor child kidnapping
Now statute kidnapping beyond statute that a victim be require asported Maryland, the territorial confines of the original legislative intent a special protect create statute to children from being away and carried to a kidnapped place within State appeased. The current version of the child kidnapping law differs from the in other kidnapping respects. law As we noted, 3-503, § child supra, kidnapping may under be commit ted that are not by circumstances covered the current statute, 3-502, Thus, § general and vice versa.26 it kidnapping that the intended to create appears Legislature separate two offenses, penalty. each with its own Nonetheless the statuto ry language legislative history legisla are silent as to the offenses, tive intent to the two offenses as distinct or a punish crime, single merged § when a defendant violates both 3-503 Indeed, kidnapping presented law child a broader definition of kidnapping, kidnapping criminal conduct than even after the law was longer require asportation first amended to no out of State. Com pare Chapter § (providing child Acts of kidnapping “forcibly fraudulently requires stealing, taking carry or or ...") ing any away age years (Emphasis child under of sixteen added) Chapter (providing § with 316 of the Acts of 1933 kidnapping requires "forcibly fraudulently carrying causing or to be ”). any person carried out of or within State ... this
359 Therefore, of the rule same conduct. by § 3-502 effect, “we, in will ambiguity, a result of the As lenity applies. hold and [would] the benefit of doubt the defendant give 222, Monoker, 582 321 Md. at merge.” crimes do (Citations omitted). it The trial court erred when A.2d at 529 counts and child merge kidnapping kidnapping failed years. thirty into sentence of one
4. Sentencing Issues: Unpreserved Admission, Impact Expert’s Testimony, Victim Medical Statement
Testimony,
Closing
and the Prosecutorial
Sentencing Hearing
his
unpreserved
regarding
three
issues
raises
Appellant
(10),
(9),
questions presented
See
numbers
sentencing.
sn,pra,
(11).
of our
as to the invalid
light
holding
In
effect
wаiver, it
for us to address
jury sentencing
unnecessary
event,
that, if the
but
to note
any
these issues
we choose
us,
claims
we would not review these
questions were before
of error cannot
unpreserved
arguments
appellate
because
or fundamental
compelling, exceptional,
be characterized as
after
applying
the defendant
fair sentencing,
assure
III(A)(2).
supra
doctrine. See
Section
plain error
Maryland
Death
Statute
Constitutionality
Penalty
argues
Maryland
that the
death
statute is
penalty
it
circum
requires
aggravating
unconstitutional because
only
outweigh
by
prepon
circumstances
mitigating
stances
“We
Appellant’s argument
derance of the evidence.
fails.
process
provi
found no
in the
consistently
have
due
violation
directing
weighing process
prepon
sion
that the
be based on a
179, 253,
835
of the
Oken v.
derance
evidence.”
denied,
(2003),
1105, 1148
124 S.Ct.
A.2d
cert.
U.S.
(2004)
State, Borchardt
(quoting
Concurring Dissenting which BATTAGLIA, JJ., join. CATHELL and I concur in that part judgment affirms the *58 convictions and vacates the imposed sentence on the extortion but, I respect, conviction dissent the vaca- with from Court’s tion death sentence.
Here is a case which defense and counsel the State defendant, on the agreed appropriate advice be to the given that, to make if certain he chose to sentencing by jury waive sentence, allow and the court to determine the his waiver and election would be knowing voluntary. agreed and The court with written statement presented by prosecutor, with counsel, the consent of defense and that read statement as statement, approved by reading them. After the court asked defendant if he had any questions, which responded defendant that he did not. The inquired court whether the defendant had discussed his election with his attorney, replied and the defendant he that had. The court inquired whether the defendant understood what the court recited, and, again, had the defendant in the affirma- replied inquired counsel, tive. court whether defense was who presumably aware his client had anti- prescribed been medication, psychotic had any questions, and the answer was “no.” careful,
Notwithstanding the fully adequate, agreed recitation, upon, this Court declares of jury Abeokuto’s waiver sentencing invalid because the court failed to determine defendant, whether the had been prescribed who while Geodon Center, incarcerated the County at Detention in fact was taking that medication at time of the waiver. I find this lawfully imposed a death sentence to vacate excuse strained troubling. than more June, that, in two brief, acknowledges Abeokuto
In his compe- issue, been found he had the waiver months before (yet). challenged has not trial, that he ruling to stand tent “on notice” was that the court this point argument His been that he “had health an issue” mental that “his “[ajсcord- medication,” and that anti-psychotic an prescribed designed questions to ask required court was ingly, drugs and the mental illness Abeokuto’s Mr. reveal whether might have illness for prescribed had been that he voluntarily knowing- to both ability his adversely affected aby jury.” to be tried right his ly waive as presented, rejects argument, seemingly This Court drawn expertise presumed pharmacological but from its own “may that Geodon site, the finds Court an Internet web from sedation, nausea, others, effects, among the side rise to give confusion,” basis declares and on that dizziness, and waiveiyblection course, is, nothing—abso- There invalid. that Abeokuto was record to indicate lutely nothing—in dizziness, nausea, or confusion sedation, any experiencing no such com- made his election. Abeokuto he made when *59 reveal transcript the Nor does attorney. nor did his plaint, sedation, nausea, dizzi- any possible from which any colloquy from the fact that Simply ness, may be inferred. or confusion nearly years two for Abeokuto prescribed that drug was effects, Internet, those the have to the earlier may, according case, in this one—that just in but every requires—not Court inquiry. make some judge that the trial not appear It does inquiry? kind of What Geo- expertise regarding pharmacological had the same judge for itself. has assumed of this Court Majority that the don to determine the Internet to consult required heWas taken in Abeokuto had drug every effects side possible any suggestion In the absence past? distant the recent or in this problem there was a attorney or his by Abeokuto pharma- into court a to summon judge obliged was regard, cist, or psychiatrist, or Court of Appeals to judge testify as to possible side any effects of such drugs? Was he to obliged deny the election in the absence of such expert testimony and Abeokuto require proceed before a jury though even he chose not to do so?
ifWhat the judge had made an inquiry and learned that Abeokuto actually taking Geodon—what then? In the absence of any suggestion was, fact, sedated, Abeokuto nauseous, dizzy, confused—which, or to this day Abeokuto has not he contended—would have been obliged deny waiver? Would he have been required to conduct an eviden- tiary hearing, experts with opining as to the alternative effects or taking taking If, medication in dosages? various argued, as the medication is designed to counteract the effects hallucinations, of a psychosis, of the judge would none- have theless been obliged to insist that Abeokuto stop taking medication so that he could make his election while not sedated, confused, dizzy, or nauseous but simply hallucinating?
The Court’s decision in this case is inconsistent with the
State,
taken in
approach
Thanos v.
330 Md.
363 not, why of a If not? What drug? from effect suffering any about this case? different that, in the anything if there was certainly agree
I would any from suffering that Abeokuto was suggest even record (or knowing inability to make a non-drug-related) drug-related decision, been judge required have intelligent would and noth- matter. There is inquiry a reasonable into the conduct however, this this such a and suggest problem, in record to ing conjur- waiver perfectly good by should not invalidate Court imaginings. out of thin air or its own hypothesis such ing and authorize me to state Judges CATHELL BATTAGLIA dissenting opinion. joins concurring he this and BELL, C.J., Dissenting by which Concurring Opinion and GREENE, joins. J. may right, that a defendant waive the
It is well settled to, her, him or v. Smith only by, and exercisable personal State, 379-81, 1055, (2003), 365, 825 1064 Howell 375 Md. A.2d State, 57, 77, 90, (1991), by 589 100 to trial 87 A.2d Md.App. v. if and only but that such waiver is effective valid jury, any by found court to open made on the record in court and voluntarily.” been made Rule “knowingly Maryland have 1063-1064; 4—246(b);1Smith, 378-81, Md. at 825 A.2d 375 at Bell, 709, (1998); 724-25, 311, A.2d v. 351 Md. 720 319 State 81, State, 90, 1229, A.2d Stewart v. 319 Md. 570 1233-34 State, 131-35, 950, (1990); 124, 522 A.2d Martinez v. Md. 31-32, 550, (1987); 28, A.2d 953-56 Tibbs v. 323 Md. (1991). 551-552 This determination is fact circumstance Tibbs, at at citing 323 Md. 590 A.2d State specific, Hall, (1990); Stewart, 178, 182, 582 A.2d 4-246(b) Maryland provides: Rule Acceptance may A waive the "Procedure Waiver. defendant for right by any trial. to a trial time before the commencement of determines, may accept an
The court the waiver until it after open examination of the defendant the record court conducted court, defendant, Attorney, attorney for the State's thereof, knowingly any is made combination the waiver voluntarily.” *61 364 90, 1233-34;
Md. at
Martinez,
“[T]he must itself that the waiver is not a product coercion, of duress or and further that the defen- dant has some knowledge of the jury trial right before being allowed to waive it.” 31, 551,
Id. at
590
Hall,
A.2d at
citing
182-83,
“In determining whether the defendant has knowingly and
voluntarily waived his right
trial,
to a jury
the questioner
need not recite any fixed incantation. Whether there is an
intelligent, competent waiver must depend on the unique
facts However,
circumstances of each case....
court must be concerned that the waiver is not a product of
duress or coercion.... Adams [v. United States ex rel.
McCann],
[269,] 275, 280,
[236,]
U.S.
240, 242,
63 S.Ct.
268[, 272, 275, (1942)
87 L.Ed.
Furthermore, ]....
defen-
right
of the
trial
knowledge
jury
some
dant must have
State], 290
it. See Dortch [v.
he is allowed waive
before
(1981)
[1220,]
];
[229,] 232,
Harris
1222[
428 A.2d
Md.
979,
(1983);
329,
1,
n.
455 A.2d
984 n.
268.”
Adams,
at
87 L.Ed.
at
63 S.Ct.
317 U.S.
omitted).
Bell,
(Footnotes
351 Md. at
citations
See
and some
720 A.2d
trial, the
right
jury
his
to a
Although questioned concerning
composition
jury
including
nature of that right,
and the effect of a waiver of
proof,
the burden of
*62
to
right
jury
of the trial on the
stage
for the
or innocence
guilt
to
respect
questioned
the
was not
with
sentencing,
petitioner
if
election;
asked
the
of the
he was not
the voluntariness
or
the
voluntarily
product
made was
freely
decision was
Nevertheless,
majori
the
coercion.
intimidation or
promises,
circum
that,
totality
“considering
ty concludes
1018,
(2006),
320,
from
stances,”
289,
893 A.2d
1036
391 Md.
found,
did,
record,
as it
trial court could have
voluntary.
by jury
knowing
of trial
was
waiver
petitioner’s
of times that the
In
the number
emphasizing
Id.
addition
the jury
his
trial
jury
right
was asked about
petitioner
1036,
320,
it
v.
trial
at
893 A.2d at
relies Dortch
process, id.
(1981),
Hall,
229,
290 Md.
In both
the defendant
undeniably
Hall and
and, so,
informed of the nature of the
trial
there
jury
right
was no issue
to his
met the
having
“knowledge” prong
as
Hall,
509, Dortch,
183,
the test.
“The record in the Dortch that indicates the defen counsel, by dant made a written election stating witnessed that his election for a court rather than a jury trial was ‘knowingly voluntarily’ and made. voluntary The character the by of election was fortified the colloquy between the opinion. 2. There were two cases in the one addressed In the other case, State, stated, simply, judge specifical- Cohen v. the Court "the trial ly dialogue prior determined on the record from with his Cohen to trial State, voluntarily right jury he that waived his to a trial.” v. Dortch 229, 235, 1220, (1981). explanation only Md. 428 A.2d This can conclusory. be described as of the trial. Dortch at the commencement judge trial Dortch, that fairly determined judge think trial We the the nature of a respect to having fully advised with been he elect- trial, right that when voluntarily relinquished jury aed court trial.” far full at It is from clear how A.2d
Id. trial, a satisfies to the nature of which jury with respect advise light that the a court to infer permits the knowledge prong, what, but is precisely that voluntarily relinquished, also was that, said. and all the Court There, the opined: is to Court
Hall
like effect.
in the
the circumstances
totality
present
the
of
“Considering
case,
“We that constitutional due process requirements transgressed were not in this Fortify- case. ing this determination is fact that on two occa- prior sions, writing, first the second in-court during trial; plea negotiations, right Hall also waived to a jury his occasion, each he also represented by was counsel.” Hall, at A.2d 509-510. Tibbs, case,
These in stark contrast a later cases stand Md. penned by 590 A.2d the author of Hall both case, and Dortch. In that proffered defendant’s waiver jury trial accepted by the trial court as knowingly and made, on voluntarily the basis of a colloquy between counsel, defendant his occurring after the re- defendant do,” “Yes, I sponded, to counsel’s inquiry concerning his knowledge right jury: of his to have trial aby “ ‘MR. STILLRICH And do under- you [Defense Counsel]: jury what a trial stand is?
“ Yes, ‘DEFENDANT: I do.
“ ‘MR. you And STILLRICH: indicated to me I when spoke with at the detention you center the other evening that you desired to have the case before tried this Court alone, is that correct?
“ Yes, I ‘DEFENDANT: do.
“ ‘MR. you your STILLRICH: And do specifically waive right to jury? have the matter tried before a “ Yes, ‘DEFENDANT: I do.
“ anyone ‘MR. you STILLRICH: Has forced or threatened you give to have you up your right jury to a trial?
“ “ No, ‘DEFENDANT: they haven’t. ‘MR. STILLRICH: you Have to a given up your right freely and voluntarily?
“ Yes, ‘DEFENDANT: I have.
369 “ to the Honor, I proffer would Your ‘MR. STILLRICH: voluntarily freely trial jury a is a that waiver Court tendered.
“ right. All ‘THE COURT:
“ Your proceed, ready And we’re ‘MR. STILLRICH: Honor.
“ a of not plea Tibbs enters And Mr. Okay. ‘THE COURT: counts, that right? to the four guilty “ correct. That’s STILLRICH: ‘MR.
“
trial?
jury
to a
right
his
‘THE
Waives
COURT:
”
“
Yes, Your Honor.’
‘MR. STILLRICH:
30,
In re- conviction, the circumstances totality on defendant’s trial jury of a waiver view, validity acknowledging 551, id. at 31, A.2d at 590 litany, on a fixed depend not does held: Court that Tibbs deficient to establish woefully record is “[T]he to a right jury his voluntarily relinquished knowingly and any that Tibbs received to disclose The record fails trial. trial, as jury nature of a concerning the information at all Hall, 183, 582 supra, 321 Md. at by our cases. See required 124, A.2d 950 507; 522 Martinez Md. A.2d (1987). merely respond accused not sufficient that an It is lawyer or either from his inquiry, to a naked affirmatively jury to a court, right that he has that he understood is,’ trial and waives trial, jury that he knows ‘what ” voluntarily.’ ‘freely and right 31-32, speculation, added that A.2d at 551. We Id. at involvement, could not justice system past criminal based notwith- “[ajccordingly, “knowledge” requirement: supply unspecified prior have had some may that Tibbs standing judge the trial justice system, criminal with the experience had the that Tibbs on this record fairly be satisfied could right, of the trial jury the nature knowledge requisite his of the right waiver was knowing and voluntary, and that requirements of the rule were thus met.” Id. at A.2d at 551-52. majority, to the responding contrary result reached court,
by the Tibbs
mеrely states that the trial court in that
case “should have inquired
further.”
The circumstances in Tibbs mirror this case. At no time
petitioner
was the
asked about
that
anything
would
the
impact
waiver,
course,
voluntariness of his
except, of
the nature of the
jury trial right and the effect of waiver in the context of a
death penalty proceeding.
of,
That a defendant is aware
has
of,
some
the
knowledge
jury trial right, while it may be
necessary
voluntariness,
to a
finding
it simply does not
address directly the motivation issue
it certainly
and
does not
inform the court as to it. Whether a person has been coerced
act,
or induced to
whether physically, mentally, by promise or
otherwise, ordinarily is not readily,
may
all,
and
not be at
Tibbs,
in
observable.3 As
there
inis
this case nothing whatso-
3. The Court was not unaware
relying
of the tenuousness of
on a record
developed fully
that
aspects
was not
as to all
of the waiver construct.
State,
229,
(1981),
In
Dortch
290 Md.
taking
I the insofar as it holds that the record majority opinion to petitioner knowingly is insufficient establish the dissent, right to I voluntarily jury sentencing. waived his however, knowingly from the conclusion that he and voluntari- jury right.” knowing voluntary of a waiver of the trial
be indicative 183-84, at 510. Id. A.2d ly waived Ms right jury to trial at guilt the stage. innocence I would remand and order a new trial.
Nevertheless, I feel to compelled mention one curiosity regarding the basis for the majority’s holding that the peti- tioner did not knowingly voluntarily right waive his jury sentencing—the failure of the trial judge make an inquiry concerning the voluntariness of the petitioner’s jury sentencing decision. Noting that the trial court knew that the petitioner had been prescribed psychiatric medication while custody, troubled, the is majority so, and rightly by the trial failure judge’s whether, to ascertain when he required decide whether to jury waive he sentencing, was still taking and, so, the medication if whether any side effects of such medication might have affected petitioner’s ability to make a knowing and voluntary waiver. Not having made this inquiry, directly implicating petition- voluntariness of the decision, er’s waiver erred, the trial judge the majority con- cludes, in finding the waiver to have been knowing and voluntary. Interestingly, petitioner did not volunteer any information on subject medication, of his or the effect of it, taking at the sentencing waiver hearing.
It interesting petitioner questioned was not subject, just this as he information, did not volunteer such during jury initial trial waiver either. majority states that such an inquiry was unnecessary at that earlier stage, reasoning effect of “[t]he the failure to make a specific inquiry on this point jury sentencing waiver is distinguishable from the absence of a similar inquiry during because, process latter, waiver in the the court heard contem- poraneous expert medical testimony regarding Appellant’s competency trial, to stand which included the prescription of [psychiatric ...” 349-50, medication] Md. at 893 A.2d
This difference is curious. The issue of peti- whether the tioner’s voluntariness was compromised by petitioner’s failure to prescribed take his medication was as much an issue *68 jury trial waiver at the guilt or innocence stage as it was at the jury sentencing I stage. do not agree whether
373 depends on the subject on is appropriate an inquiry the issue of the competency hearing. of a Unless timing of the had been taking literally of the last medication timing immediately proceed- before waiver addressed explicitly little difference two scenarios. really there between ing, event, hearing focus of a defendant’s any In trial is on that defendant has the stand whether competency waiver, she voluntary to make a whether he or capacity their proceedings, appreciates significance, understands the counsel in a defense. What is mounting and is able assist as it relates to encompassed concept in the voluntariness more; whether, fact, determining it in is much involves waiver right or her to a voluntarily jury that defendant waived his determination, in appropriate. as That sentencing, trial or informed, is, turn, and more than a defen- may be often due to lack of medication and its capacity dant’s to waive effect; to the determination is presence also relevant coercion, promises affecting inducements or absence between a temporal compe- decision. The proximity waiver hearing hearing, accordingly, and the waiver of tency is not even if relevant. dispositive, joins in the herein.
Judge expressed GREENE views RAKER, J., BELL, concurring dissenting, which C.J., GREENE, J., join dissent.
I.
I
imposition
would reverse the sentence and
grounds
Maryland
death
on the
that the
death
penalty
penalty
process
statute violates due
is therefore unconstitutional
requires
aggravating
because
statute
circumstances
mitigating
only by preponderance
circumstances
outweigh
than the
beyond
the evidence rather
standard of
reasonable
1
views
more
in the
my
expressed
fully
doubt.
adhere
State,
Md.
A.2d
dissenting opinions of Evans
389
886
(2005),
(2004),
A.2d
Miller v.
Md.
*69
State,
(2003),
v.
Oken
Md.
Chief Bell and Judge Greene have authorized me to join state that they this dissent.
II. I would affirm the judgments of conviction on guilt/inno- cence phase.
BAKER AND DIVISION PHASE et al. 72, Sept. Term,
No. 2005. Appeals Maryland. Court of March