Michael Anthony BRUNO v. STATE of Maryland
No. 143, Sept. Term, 1992
Court of Appeals of Maryland
Nov. 17, 1993
632 A.2d 1192
Moreover, the majority incorrectly assumes that the delay will always be only a day or two. It is common knowledge that the postal system sometimes takes considerably longer to deliver mail. In light of the relatively short time periods involved, with the required notice only five days before trial in the District Court, the rule will be totally ineffective in some instances.
Both legislative policy and the policy underlying Rule 4-245(b) require that a defendant receive notice 15 days before the circuit court trial if the State seeks an enhanced punishment. I would vacate the petitioner‘s sentence and remand the case for resentencing.
Judge ROBERT M. BELL has authorized me to state that he concurs with the views expressed herein.
David P. Kennedy, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for respondent.
Argued before MURPHY, C.J., ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, ROBERT M. BELL, JJ., and CHARLES E. ORTH, Jr., Judge of the Court of Appeals (retired), Specially Assigned.
CHASANOW, Judge.
Petitioner, Michael Anthony Bruno, was tried in the Circuit Court for Harford County on stipulated evidence and was convicted of first degree rape by the trial judge (Whitfill, J.). Bruno appealed his conviction, challenging the admissibility of incriminating statements that he made to three different individuals. At a pretrial motions hearing, the trial judge denied a motion to suppress these statements, and they were included as part of the stipulated evidence. On appeal, the Court of Special Appeals ruled that the statements to two of the three individuals were inadmissible, however, it found their admission was harmless in light of the other overwhelming evidence of guilt. We granted certiorari to consider if improperly admitted statements could be deemed harmless error when a defendant, in order to preserve for appeal the trial court‘s ruling on a motion to suppress, has pled not guilty and agreed to a trial by stipulated evidence.
Bruno was charged with first degree rape and related offenses. He pled not guilty and initially elected to be tried by a jury. Prior to trial, Bruno sought to suppress several incriminating statements on the ground that they were obtained in violation of his Sixth Amendment right to counsel. The challenged evidence included (1) “the Smith statement“—Bruno‘s admission to Norman Smith, a fellow inmate in the Harford County Detention Center, that Bruno had forcibly raped the victim after a night of partying; (2) “the Mack statement“—statements made by Bruno to another inmate, Curtis Mack, expressing his desire to have the rape victim killed; and (3) “the Walters statement“—Bruno‘s conversation with Corporal Frank Walters, an undercover officer with the Maryland State Police, in which Bruno repeated his desire to have the rape victim killed and agreed to a price for the murder. The trial court denied Bruno‘s motion to suppress all three of these statements.
After the denial of his suppression motion, Bruno reaffirmed his not guilty plea; however, he decided to waive his right to a jury trial and agreed to a trial by stipulated evidence.1 Bruno‘s actions were prompted by his desire to preserve the right to appeal the denial of his suppression motion and to accept the State‘s offer that, if he proceeded by stipulated evidence, it would place all charges other than first degree rape on the stet docket. Bruno further benefited from the State‘s promise to recommend a sentence of life with all but twenty (20) years suspended, to run concurrently with any sentence Bruno received in a companion case charging him with solicitation to murder.2 After the judge extensively questioned Bruno and
“[STATE‘S ATTORNEY]: Your Honor, in the early morning hours of March 29, 1990, a woman by the name of Kimberly W.,4 approximate age 24, was at a bar called Lucky Spirits in Baltimore City. She met up with a group of five men, among them Michael Bruno, the Defendant. Mr. Bruno was on an, I guess bar hopping would be a good term, with the other men.
As the evening progressed, Miss W. became part of the group, and shortly before closing, Miss W. left the bar in Mr. Bruno‘s limousine with the five men, including Mr. Bruno. They went on a rather circuitous route, through Baltimore County, ultimately ending up in Harford County.
At some point, two of the men, Chuckie and Ricky Frazier, left the group, leaving Miss W. with Michael Bruno, Robert Ambrose, and Andre Whims.
There came a time when Mr. Bruno and/or his companions demanded sexual relations with Miss W. The limousine was parked at the time. Miss W. refused these advances.
At that point, Mr. Ambrose and Mr. Whims held down Miss W. and Mr. Bruno started to remove her clothing forcefully. Miss W. resisted. She was kicking and pushing at them, and telling them to stop.
Mr. Bruno obtained an electronic stun gun device that delivers shocks of relatively high voltage of electricity, and shocked her with it on her bare skin numerous times.
While she was being held down by his companions and after the weapon, which she perceived to be a dangerous
and deadly weapon, was used upon her, she submitted, and Mr. Bruno engaged in forceful vaginal intercourse with her forcefully, and against her consent, while the two companions were assisting in subduing her. Other sexual acts took place, all against her will, and without her consent. There were several acts of sexual intercourse, acts of sodomy, and battery.
Ultimately, when the sexual events were over, Mr. Bruno and his companions began to discuss the possibility of having breakfast. Miss W., realizing this would involve going to a place where there were other people, and a place of safety, agreed to do so. They came to Denny‘s in the Fallston area of Harford County. There, she was let out of the vehicle and approached a waitress.
The police were summoned. Mr. Brunо and his companions were all arrested. While in jail, in the Harford County Detention Center, under this charge, pending trial, Mr. Bruno admitted to a fellow inmate by the name of Norman Smith, that he had raped Miss W.
He also had a conversation with a fellow inmate by the name of Curtis Mack concerning killing Miss W., the State‘s witness. Mr. Mack made arrangements to have Mr. Bruno contact Corporal Frank Walters of the Maryland State Police, who was identified to Mr. Bruno as Tony, a professional hit man who would take care of Miss W. for him.
Mr. Bruno contacted Corporal Walters and engaged in a conversation with him, which has been marked as a State‘s exhibit. We would ask it be included as an exhibit, the transcript of the conversation, included as an exhibit in the Statement of Facts.
THE COURT: Be accepted.
[STATE‘S ATTORNEY]: Thank you. In this conversation Mr. Bruno solicited the murder of Miss W. for a sum of money which was agreed for approximately $1,500.
Just to clear it up, I am not sure I precisely phrased it regarding Mr. Mack. At some point Mr. Bruno and Mr. Mack had a conversation regarding Mr. Bruno‘s desire to
kill Kimberly W. Mr. Mack gavе the name, phone number, and the name “Tony,” which was Frank Walters of the Maryland State Police, which brings about the transcript we have asked to be included. The terminating point of the transport of Miss W. in the course of the rape was, of course, Harford County, which, of course, gives us jurisdiction. That would be the Statement of Facts.
*
[DEFENSE ATTORNEY]: Your Honor, in light of the agreement, if that‘s—if the State‘s witnesses were to testify in this case, that would be their testimony. Given that, we have no further additions, corrections, deletions, or modifications.
THE COURT: Argument as to whether or not the Statement of Facts is sufficient to constitute the offenses charged?
[DEFENSE ATTORNEY]: We will submit.
THE COURT: Based on the Statement of Facts, I am convinced beyond a reasonable doubt and to a moral certainty the Defendant is guilty of First Degree Rape of Kimberly W., and that he had vaginal intercourse with her against her will by use of force, with assistance of others, and the use of a weapon.
So, for that reason, a finding of guilty as to Count 1, First Degree Rape, will be entered.”
There was a further stipulation to incorporate relevant testimony from the motions hearing regarding Bruno‘s statements to Smith, Mack, and Walters. Bruno offered no evidence and called no witnesses to controvert the stipulated testimony, and expressly acknowledged that the credibility of the State‘s witnesses was not at issue.
On appeal, the Court of Special Appeals addressed Bruno‘s Sixth Amendment, right-to-counsel challenge to the statements to Smith, Mack, and Walters. The intermediate appellate court determined that the Smith statement, in which
Before this Court, Bruno contends that the Court of Special Appeals erred by finding the improperly admitted statements harmless error. First, Bruno asks us to analogize a not guilty plea, together with a stipulation as to the State‘s evidence, to a procedure permitted in some jurisdictions called a conditional guilty plea. He further contends that, if we analogize a trial by stipulated evidence to a conditional guilty plea, we should then follow cases that have refused to apply harmless error to an erroneous refusal to suppress evidence followed by a conditional guilty plea. Those courts have reasoned that there is no way to assess the impact erroneously admitted evidence had upon a defendant‘s decision to plead conditionally guilty. See, e.g., People v. Miller, 33 Cal.3d 545, 555-56, 189 Cal.Rptr. 519, 526-27, 658 P.2d 1320, 1327-28 (1983); People v. Grant, 45 N.Y.2d 366, 379-80, 408 N.Y.S.2d 429, 437, 380 N.E.2d 257, 265 (1978); Jones v. Wisconsin, 562 F.2d 440, 445 (7th Cir. 1977); People v. Hill, 12 Cal.3d 731, 768, 117 Cal.Rptr. 393, 421, 528 P.2d 1, 29 (1974).
For reasons we will discuss below, we believe the Court of Special Appeals properly invoked the harmless error rule under the facts of this case. We emphasize that this decision only addresses the propriety of applying harmless error. Bruno does not challenge the intermediate appellate court‘s ruling on the admissibility of “the Smith statement.” In its conditional cross-petition, the State does challenge the ruling on the inadmissibility of the Mack and Walters statements. The State presents the question of “[w]hether the Court of Special Appeals erred in holding that evidence that Bruno solicited the murder of the rape victim was inadmissible in his rape trial under Maine v. Moulton [474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985)].” Because we granted certiorari to review the harmless error issue and because we find that any error would indeed be harmless, we will not address the issue raised in the conditional cross-petition. We will assume, arguendo, the correctness of the Court of Special Appeals with regard to the inadmissibility of Bruno‘s statements to Mack and Walters under the Sixth Amendment right to counsel.
II.
We begin our analysis with a discussion of conditional guilty pleas. A conditional guilty plea, where permitted by statute or rule, generally allows a defendant to plead guilty, yet still retain the right to appellate review of certain pretrial motions. As implemented by the Federal Rules of Criminal Procedure, a defendant must preserve, in writing, appellate review of the
Bruno directs our attention to cases dealing with conditional guilty pleas in light of his decision to elect an abbreviated form of trial on stipulated evidence. We recognize that several courts have determined that harmless error should not be applied where there is an improper denial of a suppression motion followed by a conditional guilty plea. For example, in Hill, supra, the Supreme Court of California determined that an appeal from the denial of a suppression motion, expressly authorized by statute after a guilty plea, prevented the court from invoking harmless error when some, but not all, of the evidence should have been suppressed. Id., 12 Cal.3d at 769, 117 Cal.Rptr. at 421-22, 528 P.2d at 29-30. The court de
We first note that the Hill decision has not escaped criticism. In People v. Salazar, 93 Cal.App.3d 912, 125, 127 (1979), an intermediate California appellate court questioned the soundness of Hill‘s apparently absolute rule barring harmless error analysis and applied the doctrine where it could not “conceive of a rational basis for concluding that the [defendant‘s] guilty plea was triggered by the erroneous refusal to suppress some of the prosecution‘s evidence....” See also People v. Carney, 117 Cal.App.3d 36, 172 Cal.Rptr. 430, 439 n. 2 (1981) (Staniforth, J., concurring and dissenting) (“In certain factual situations, the blind acceptance of the Hill ... rule leads to an absurd, unnecessary time wasting result....“), rev‘d, 34 Cal.3d 597, 194 Cal.Rptr. 500, 668 P.2d 807 (1983), rev‘d, 471 U.S. 386, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985). Moreover, in People v. Ingram, 122 Cal.App.3d 673, 176 Cal.Rptr. 199 (1981), a California appellate court acknowledged the important distinction, for harmless error purposes, between a conditional guilty plea and a not guilty plea with stipulations. The court noted that the defendant did not plead conditionally guilty as in Hill but “submitted the cause to the trial court on the testimony taken at the preliminary hearing,” and thus the “unacceptable degree of appellate speculation” present in Hill was not a
Conditional guilty plea cases refusing to apply harmless error analysis after a defendant pleads guilty are inapposite to the instant case. First, and most important, Bruno did not plead guilty, and thus we are neither concerned with the “magnitude of the consequences of a guilty plea,” nor with how an erroneous refusal to suppress evidence impacted upon a decision to plead “guilty.” By pleading not guilty, Bruno was convicted after a trial, albeit, one based on stipulated evidence. Bruno enjoyed the right to full appellate review, as well as benefited from the State‘s sentence recommendation and its decision to place other charges on the stet docket. Unlike a guilty plea, under which the State would be relieved of its burden of proof, Moyer v. State, 225 Md. 156, 158, 169 A.2d 409, 410 (1961), Bruno‘s not guilty plea required the State to present stipulated evidence sufficient to constitute first degree rape or risk an acquittal by the trial judge. See Barnes v. State, 31 Md.App. 25, 28, 354 A.2d 499, 501 (1976) (Orth, C.J.) (stating that, even in a trial based upon agreed statement оf facts, accused must be acquitted if evidence is insufficient to sustain conviction). Moreover, Bruno had the right to present exculpatory or mitigating evidence. Although Bruno‘s counsel declined the opportunity to present a closing argument, the trial judge did ask for any “[a]rgument as to whether or not the Statement of Facts is sufficient to constitute the offenses charged.” As noted by the Supreme Court of California in Bunnell v. Superior Court of Santa Clara County, 13 Cal.3d 592, 602, 119 Cal.Rptr. 302, 308, 531 P.2d 1086, 1092 (1975), “[n]otwithstanding [any bargained-for agreement] or the fact that conviction is a foregone conclusion, a submission of the cause for decision on the [preliminary] transcript is a trial.” (Emphasis added). Bruno‘s conviction, based upon stipulated evidence as well as the incorporated relevant portions of the suppression hearing‘s testimony, was
We are also unpersuaded by those cases finding harmless error inappropriate in conditional guilty plea appeals because they primarily rest upon interpretations of statutes that expressly enable defendants to appeal certain rulings even after entering a guilty plea. See Hill, 12 Cal.3d at 769, 117 Cal.Rptr. at 421-22, 528 P.2d at 29 (construing
Our conclusion that harmless error is applicable to the instant case finds further support in federal court decisions that have criticized conditional guilty pleas. Even prior to the enactment of
Bruno also relies on United States v. Weber, 668 F.2d 552 (1st Cir. 1981), cert. denied, 457 U.S. 1105, 102 S.Ct. 2904, 73 L.Ed.2d 1313 (1982), to support the contention that harmless error should not be applied to the inadmissible statements to Mack and Walters in light of Bruno‘s agreement to stipulаted evidence. In Weber, after unsuccessfully seeking to suppress evidence, the defendants waived a jury trial and submitted to trial by agreed facts, pretrial testimony, and exhibits from the
III.
We continue our discussion by briefly mentioning the effect of a not guilty and guilty plea on a defendant‘s right to appellate review. Ordinаrily, a defendant is entitled to appellate review after a final judgment in a criminal case. See
Although Maryland does not authorize a conditional guilty plea, see
“There is a distinction between an agreed statement of facts and evidence offered by way of stipulation. Under an agreed statement of facts both [the] State and the defense agree as to the ultimate facts. Then the facts are not in dispute, and there can be, by definition, no factual conflict. The trier of fact is not called upon to determine the facts as the agreement is to the truth of the ultimate facts themselves. There is no fact-finding function left to perform. To render judgment, the court simply applies the law to the facts agreed upon. If there is agreement as to the facts, there is no dispute; if there is dispute, there is no agreement. It would be well, to avoid confusion, that when the parties are in agreement on the facts, the statement of them
begin with language to the effect, ‘It is agreed that the following facts are true....’ On the other hand, when evidence is offered by way of stipulation, there is nо agreement as to the facts which the evidence seeks to establish. Such a stipulation only goes to the content of the testimony of a particular witness if he were to appear and testify. The agreement is to what the evidence will be, not to what the facts are. Thus, the evidence adduced by such a stipulation may well be in conflict with other evidence received. For the trier of fact to determine the ultimate facts on such conflicting evidence, there must be some basis on which to judge the credibility of the witness whose testimony is the subject of the stipulation, or to ascertain the reliability of that testimony, to the end that the evidence obtained by stipulation may be weighed against other relevant evidence adduced.... We note that the usual way of introducing such a stipulation—‘If John Doe were to testify, he would testify as follows....‘—makes clear the status of the evidence so offered.” (Emphasis in original).
In the instant case, Bruno pled not guilty, as emphasized by his counsel.8 Although the court, prosecutor, and defense counsel referred to Bruno‘s plea as a “Not Guilty Statement of Facts,” it is also clear that the parties did not have an agreement as to ultimate fact, but merely an agreement as to what the State‘s witnesses would attest to if they were called to testify. Recognizing that conflicts in stipulated testimony may make such a form of trial inappropriate, see Atkinson v. State, 331 Md. 199, 203 n. 3, 627 A.2d 1019, 1020-21 n. 3 (1993); Polk, 85 Md.App. at 656-57, 584 A.2d at 1278; Barnes, 31 Md.App. at 36, 354 A.2d at 506, the trial judge emphasized that he couldn‘t “resolve conflicts” based on the stipulation. Whereupon, Bruno‘s attorney indicated no intent to contradict the State‘s proffer, and stated (and later reiterated) that, “we
Because he pled not guilty and in effect had a trial, Bruno retained his right to full appellate review. Bruno, however, now suggests that the harmless error doctrine should not be applicable to his appeal and he is entitled to a new trial because of insignificant errors. He contends that, because he proceeded by stipulating to the State‘s evidence rather than undergoing a full, adversarial trial, he retains the benefit of full appellate review, but the State forfeits the benefit of the harmless error rule. We refuse to allow Bruno to “have his cake and eat it too.” Jones v. State, 77 Md.App. 193, 199, 549 A.2d 1150, 1153 (1988) (Bell, Robert M., J.) (rejecting defendant‘s contention that his conviction should be reversed because he was not granted procedural requirements associated with a guilty plea after defendant obtained a direct appeal based on his not guilty plea with an agreed statement of facts).
Guiding this decision is our belief that a defendant should not be able to circumvent the application of the harmless error rule because he or she opts to proceed to trial by stipulated evidence or an agreed statement of facts. The harmless error doctrine is based on “appellate judgments that a retrial is not justified if the error has not affected the rights of the parties,” Dorsey v. State, 276 Md. 638, 647, 350 A.2d 665, 671 (1976), and a recognition that “[a]n accused has a constitutional right to a ‘fair trial’ but not necessarily to that seldom experienced rarity, a perfect trial.” State v. Babb, 258 Md. 547, 552, 267 A.2d 190, 193 (1970). In Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), the United States Supreme Court stated its belief that “the harmless-error doctrine is essential to preserve the ‘principle that the central purpose of a criminal trial is to decide the factual question of the defendant‘s guilt or innocence, and [it] promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error.‘” Id., 499 U.S. at 308, 111 S.Ct. at 1264, 113 L.Ed.2d at 330 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674, 684-85 (1986) (citations omitted)). In Maryland, the harmless error doctrine‘s vital role in appellate review is further evidenced by the enactment of
In essence, Bruno asks us to create a per se rule, granting a defendant a new trial whenever an appellate court rules any challenged evidence inadmissible, simply because the trial was conducted on stipulated evidence, and regаrdless of whether the erroneously admitted evidence lends only an insignificant inference of guilt, is cumulative, or for any other reason would not affect the trial judge‘s ultimate decision. We decline to do so. For instance, suppose that a defendant pleads not guilty and proceeds on stipulated evidence following a denial of a motion to suppress seven separate confessions to the same crime. Further assume that, on appeal, only the last of these confessions is ruled inadmissible, leaving six properly admitted confessions. Refusing to apply harmless error to the seventh, cumulative confession, simply because the trial was by stipulated testimony, would in no way promote “public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error.” Fulminante, 499 U.S. at 308, 111 S.Ct. at 1264, 113 L.Ed.2d at 330 (quoting Van Arsdall, 475 U.S. at 681, 106 S.Ct. at 1436, 89 L.Ed.2d at 685 (citations omitted)).
Defendants should not be able to avoid the harmless error rule and obtain appellate review of pretrial rulings admitting clearly insignificant or cumulаtive evidence. Nor should convictions, even convictions on stipulated testimony, be reversed when a judge properly denied a motion to suppress most of the incriminating evidence, but erred in failing to suppress relatively insignificant items. A trial on stipulated evidence is a trial; it is not a circuitous method of obtaining appellate review of rulings admitting immaterial evidence. Neither the State nor the defendant, nor the two acting in concert, can mandate appellate relief for rulings which are harmless be
Perhaps anticipating our decision that harmless error may be applied in an appeal from a trial by stipulated evidence, Bruno argues that the admission of his statements to Mack and Walters cannot be deemed harmless beyond a reasonable doubt. Bruno is really suggesting that, in trials by stipulated evidence, the evidence stipulated to should rarely be considered harmless. Although Bruno‘s case is not as clear-cut as our above hypothetical case involving seven confessions, it is nonetheless a proper setting for invocation of the harmless error rule. The Court of Special Appeals ruled inadmissible the Mack and Walters statements, in which Bruno indicated his desire to have the rape victim killed. At best, these statements lend only inferential support to the conclusion that Bruno committed rape, i.e., they indicate “consciousness of guilt.” Arguably, the statemеnts “show not so much a consciousness of guilt [but] simply a desire to get out of jail and escape the prosecution.” Bruno, 93 Md.App. at 518, 613 A.2d at 449. The intermediate appellate court, however, found that Bruno‘s statement to Smith, in which Bruno expressly admitted that he forcibly raped the victim, was properly admitted. Of all the evidence that Bruno sought to suppress, the statement to Smith was clearly the most damaging. While the proffer at trial included that “Bruno admitted to a fellow
We are confident that the statements to Mack and Walters “in no way influenced the [judge‘s] verdict.” Dorsey, 276 Md. at 659, 350 A.2d at 678. The trial judge had overwhelming evidence of guilt properly before him, consisting of the admission to Smith of the rape, as well as the uncontroverted, stipulated evidence supporting the conviction for first degree rape.9 Under these circumstances, we believe that an appellate court may properly find the erroneous admission of two statements lending only inferential support of guilt was harmless beyond any reasonable doubt. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710-11 (1967) (“[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.“); Milton v. Wainwright, 407 U.S. 371, 372-73, 92 S.Ct. 2174, 2175-76, 33 L.Ed.2d 1, 4 (1972) (finding incriminating statements harmless beyond a reasonable doubt, even if erroneously admitted in violation of Sixth Amendment rights, where other overwhelming evidence of guilt was present).
We should briefly address the propriety of deeming an error harmless where a defendant stipulates to evidence sufficient for conviction in order to preserve a pretrial suppression
IV.
We do not believe that today‘s ruling will force all future defendants to gо through full, adversarial trials to preserve the right to challenge pretrial rulings denying the suppression of evidence. In cases where truly dispositive rulings are at issue, a not guilty plea with stipulated evidence still provides a defendant the opportunity for quicker trials without fearing the application of the harmless error doctrine on appeal. However, we decline to allow a defendant to stipulate to evidence in order to challenge multiple, nondispositive pretrial rulings on appeal, with a reversal mandated if even a single “harmless” ruling was incorrect.
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY PETITIONER.
Dissenting opinion by ROBERT M. BELL, J.
The harmless error rule1 applicable in this state is that enunciated in Dorsey v. State, 276 Md. 638, 659, 350 A.2d 665, 678 (1976). It is:
[W]hen an appellant, in a criminal case, establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed “harmless” and a reversal is mandated. Such reviewing court must thus be satisfied that there is no reasonable possibility that the evidence complained of—whether erroneously admitted or excluded—may have contributed to the rendition of the guilty verdict.
Id. at 659, 350 A.2d at 678 (footnote omitted). The test focuses on the effect of erroneously admitted or excluded evidence on the verdict rendered by the trier of fact. Whether that evidence played a role in the verdict is a question addressed to the reviewing court. Once the appellate court determines that error was committed, reversal is required unless it also determines, beyond a reasonable doubt, that the error did not influence the verdict; harmless error occurs only if the error played no role in the trier of fact‘s verdict. State v. Enriquez, 327 Md. 365, 374, 609 A.2d 343, 347 (1992); Johnson v. State, 325 Md. 511, 522, 601 A.2d 1093, 1097-98 (1992); Bowie v. State, 324 Md. 1, 11, 595 A.2d 448, 452 (1991); Hook v. State, 315 Md. 25, 42, 553 A.2d 233, 242 (1989).
I agree, unlike the majority, with the petitioner that “in trials by stipulated evidence, the evidence stipulated to should rarely be considered harmless.” See majority opinion at 693. The petitioner merely states a well-settled proposition that harmless error analysis is supposed to be strict, that it “has been and should be carefully circumscribed.” Younie v. State, 272 Md. 233, 248, 322 A.2d 211, 219 (1974). Indeed, in that case, quoting People v. Jablonski, 38 Mich.App. 33, 195 N.W.2d 777, 780 (1972), the Court stated the proposition even more graphically:
“Continued expansion of the harmless error rule will merely encourage prosecutors to get such testimony in, since they know that, if they have a strong case, such testimony will not be considered to be reversible error, yet if they have a weak case, they will use such testimony to buttress the case
to gain a conviction and then hope that the issue is not raised on appeal.”
Id. at 248, 322 A.2d at 219. Although the majority does not expressly so state, the Court rejects that proposition and, so, continues the movement away from harmless error as an extraordinary, rather than ordinary, test. See Rubin v. State, 325 Md. 552, 592-93, 602 A.2d 677, 696-97 (1992) (Bell, J. dissenting).
In the case sub judice, the stipulated evidence consisted of a summary of the testimony of the State‘s witnesses, and evidence pertinent to the review of the court‘s ruling on the petitioner‘s motion to suppress. The testimony of three of those witnesses—two of whom, Mack and Smith were former inmates with the petitioner and the third, Walters, was a Maryland State Police undercover officer—related statements purportedly made to them by the petitioner. This testimony was the subject of thе motion to suppress, which the trial court denied. The statement to Smith, which purportedly related the details of the rape, was held by the Court of Special Appeals to have been properly admitted. The opposite conclusion was reached as to those statements, involving the petitioner‘s desire to have the rape victim killed, made to Walters and Mack. The Court of Special Appeals, as did the majority, concluded the trial court‘s error was, however, harmless. As the majority views it:
The trial judge [nevertheless] had overwhelming evidence of guilt properly before him, consisting of the admission to Smith of the rape, as well as the uncontroverted, stipulated evidence [of the facts and circumstances of the rape].
Majority opinion at 694 (footnote omitted). To reach that conclusion, both the majority and the Court of Special Appeals characterized the statements to Mack and Walters as “lend[ing] only inferential support to the conclusion that Bruno сommitted rape, ie. they indicate ‘consciousness of guilt.‘” Id. at 693.
In harmless error analysis, the issue is not what evidence is available to the trier of fact, but rather what evidence the trier
Although the reviewing court, in conducting its harmless error analysis, must independently review the record, it cannot lose sight of the role of the trier of fact in assessing whether the State has met its burden of proof. The trier of fact‘s role involves, inter alia, weighing the evidence and resolving any credibility issues which might be presented. See Dykes v. State, 319 Md. 206, 224, 571 A.2d 1251, 1260-61 (1990); Gore v. State, 309 Md. 203, 522 A.2d 1338 (1987); Wilson v. State, 261 Md. 551, 566, 276 A.2d 214, 221 (1971); Jacobs v. State, 238 Md. 648, 650, 210 A.2d 722, 723-24 (1965). The appellate court does not weigh the evidence—not even when it is assessing the sufficiency of the evidence. See Clemson v. Butler Aviation, 266 Md. 666, 671, 296 A.2d 419, 422 (1972); Gray v. Director, 245 Md. 80, 84, 224 A.2d 879, 881 (1965). The determination of the sufficiency of the evidence requires the appellate court simply to decide whether evidence exists on the basis of which a rational trier of fact could find the elements of the crime charged beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2788, 61 L.Ed.2d 560, 573 (1979); Bloodsworth v. State, 307 Md. 164, 167, 512 A.2d 1056, 1057 (1986).
I also find singularly unpersuasive the distinction that the majority draws between the statements. Conceivably, a statement made to an undercover police officer, in which the petitioner seeks to put a contract on the life of the victim, corroborated by another inmate, is more credible and would be more likely to influence the trier of fact‘s verdict as to the petitioner‘s guilt than simply a statement to a fellow inmate that he was involved in the crime. Certainly, it is well settled that evidence lending inferential support of a defendant‘s guilt by establishing consciousness of guilt is highly relevant and, therefore, routinely admitted for that purpose.
I therefore dissent.
Notes
In this case, the petitioner proceeded to trial on stipulated evidence in order to ensure that he was able to challenge the court‘s ruling on his suppression motion without having to go through a full trial. By proceeding in that fashion, the trial court‘s decision on guilt or innocence was, and was expected to be, totally predictable; the trial court would find the petitioner guilty. See Bunnell v. Superior Court, 13 Cal.3d 592, 119 Cal.Rptr. 302, 531 P.2d 1086 (1975); see also Jon D. Botsford, Conditioned Guilty Pleas: Post-Guilty Plea Appeal of Nonjurisdictional Issues, 26 UCLA L.Rev. 360, 384 (1978). Viewed in this fashion, the petitioner‘s argument that the procedure he used is equivalent to the conditional guilty plea procedure, in which challenges to evidentiary rulings are permitted, and are recognized in a number of states and the federal courts, has considerable merit. See Lefkowitz v. Newsome, 420 U.S. 283, 290-91 n. 7, 95 S.Ct. 886, 890 n. 7, 43 L.Ed.2d 196, 203 n. 7 (1975) (distinction between the conditional guilty plea and a stipulation mere “infatuation with labels“); Sutton v. State, 289 Md. 359, 366, 424 A.2d 755, 759 (1981).
In Lefkowitz v. Newsome, the United States Supreme Court noted that the procedure whereby a criminal defendant could stipulate to all the state‘s evidence while entering a plea of not guilty benefits a defendant who intends to appeal his pretrial claim of unlawful search and seizure without the desire of going through an entire trial. 420 U.S. at 291, 95 S.Ct. at 890, 43 L.Ed.2d at 203. Upon the inevitable entry of judgment of conviction, the defendant is able fully to pursue his state appellate remedies. See id. at 290-91 n. 7, 95 S.Ct. at 890 n. 7, 43 L.Ed.2d at 203 n. 7; see also Bunnell, 13 Cal.3d 592, 119 Cal.Rptr. 302, 531 P.2d 1086 (stipulation procedure a viable method of preserving a defendant‘s statutory right of appeal on all issues).
By applying harmless error analysis in a case like the present one, the Court encourages the violation of the spirit, if not the letter, of the parties’ agreement. Moreover, the Court encourages a party who is unable to anticipate the consequences of a not altogether successful appeal if he or she proceeds on a stipulated case, to proceed to trial simply to obtain review of a challenged motions ruling.