*1
STATE of 84, 114, Term, Sept. Nos. 1981. Appeals Maryland.
Court
March 1984. *6 Defender, Baltimore Burns, Jr., Asst. Public George E. Weisheit, Public Defender and Martha Murrell, H. (Alan Baltimore, for Defender, brief), appel- on the Asst. Public lant. Schulze, Attys. Asst. K. Handel and K. Jillyn
Deborah Baltimore, Sachs, on Gen., H. Gen., Atty. Baltimore (Stephen the brief), appellee. ELDRIDGE, MURPHY, C.J., SMITH, and before
Argued COUCH, JJ. DAVIDSON, and COLE, RODOWSKY COUCH, Judge. guilty was found Colvin,
Eugene appellant, Sherman County, for Anne Arundel in the Court a Circuit by jury murder, murder, robbery felony premeditated first degree entering. breaking a and daytime with deadly weapon, sentencing proceeding a to conduct the selected jury Colvin Article Repl.Vol.), Code Maryland (1957,1932 to pursuant the death 413; jury imposed following proceeding § review, as provid- before us for The matter now penalty. 27, 414. for Article ed §
The have from of facts parties agreed statement which the events to this case be underlying giving rise victim, gleaned. Buchman, Lena was an 82 old year A.M., resident Florida. September 9, On at 11:00 she arrived Baltimore to visit same family. her That afternoon Mrs. her Buchman alone in home of Sorrell, daughter, Marjorie when stabbed death. she was A neighbor found her in the at approximately Sorrell home 2:30 P.M. Police and were emergency dispatched units the home Mrs. Trau- Buchman was flown to the Shock ma Unit of she Hospital, where University Maryland pronounced dead at 4:23 P.M. An revealed autopsy total of wounds on twenty-eight body. stab into Sorrell house had been
Entry apparently gained *7 A in the was through glass basement door. door pane found to and the chain locks were un- have been broken A of hinged. subsequent premises search revealed all of Mrs. was as well Sorrell’s as a Timex jewelry missing, wristwatch and a As pocketwatch. recently Mrs. Sorrell had had all inventoried, her and she able jewelry appraised was to provide with detailed of her as police descriptions jewelry well as photographs, addition to serial numbers on the pocketwatch. on investigation focused when latent appellant lifted
fingerprints, from the of from base- pieces glass door, ment were with prints matched known of Colvin. Moreover, the investigation disclosed on September 1980, Colvin pawned the pocketwatch Sorrell and a Timex wristwatch. The pocketwatch carried the same identifica- tion as number the watch taken from the Sorrell residence and the Timex wristwatch was identified Mrs. as Sorrell the one from taken her house. The pawnbroker negoti- who ated the loan testified pocketwatch regarding circumstances of that transaction. He stated the person the watch him an pawning showed of card for age majority identification. That card issued Mo- Department of tor Vehicles was in the of and Eugene name Colvin Sherman the signature and on the picture card matched the person of noted the age The pawnbroker the watch.
pawning De- Additionally, on the receipt. card number majority C-032679, also number, card Services partment Social employee At trial a Services noted on the Social receipt. any number and that had a case testified that appellant have carried the to him would identification card issued to a decision necessary Further facts number 032679. in our supplied will be appeal various issues raised by discussion of those issues. into fall generally we must consider1
The issues which (4) trial, (3) (2) post-trial, five (1) pre-trial, categories: review, (5) constitutionality sentence proportionality these shall discuss statute. We death Maryland’s penalty issues seriatim.
(1) error concern claims matters in which Colvin The pre-trial its certain evidence suppress the denial of his motion to he asserts that trial. Additionally, admission at subsequent a proper inquiry to conduct failing the trial court erred to waive counsel. an inclination after he demonstrated (a) no merit in issues, we find As to the first of these card referred that the age majority contention appellant’s testified The appellant admitted. erroneously to above search of illegal found in an that the card must have been *8 414(e): 1. Art. § of Appeals. to the consid- Court addition “Considerations —In appeal, the any properly the on before Court eration of errors imposition sen- Appeals of the death consider the of shall Court sentence, regard shall determine: to the the Court tence. With imposed influ- (1) under the of death was Whether the sentence factor; any arbitrary prejudice, passion, or other ence of finding supports jury’s (2) or court’s evidence the Whether the 413(d); statutory aggravating circumstance under § of a finding supports jury’s (3) the or court’s the evidence Whether mitigat- outweighed by aggravating are not that the circumstances circumstances; ing disproportion- (4) death is excessive or the sentence of Whether cases, considering imposed both the penalty in similar the ate to crime and the defendant.” his a home, whereas officer testified that it police discovered at a routine search of police headquarters during circumstances the As the on at- appellant. the testimony the of the tending seizure the card was in direct conflict trial weigh judge required appellant’s credibility against that of the detective in the of determining legality the search. Rule Maryland provides:
“When an action has been tried the lower court this without Court will review the case both jury, upon the evidence, law and the the the but lower judgment court will not set be aside on evidence unless clearly erroneous and regard given due will be to the opportunity of the lower court of the witness- judge credibility es.” no
Appellant produced evidence to substantiate his claim of an illegal search other than his testimony. Therefore, rule is to the trial applicable determination that the judge’s card station, was found during search at the police incident to an arrest. doWe not find the determination of the lower court in this instance to be clearly erroneous.
The trial in ruling commented, the card judge, admissible, alia, inter that it was routine to pat a down suspect for protection purposes police station. Because the offi- cer had testified that he was specifically looking the card time, at this appellant trial argues judge erred so, contends, the card. This is admitting he because the trial judge either this forgot testimony it. disregarded Court finds argument to be without merit. The Su- preme Court has held fact a valid arrest furnish- justification es for a search for evidence incident thereto. In United v. Robinson, States 414 U.S. (1973),
L.Ed.2d 427 the Court made clear that Fourth Amendment permits the to search police fully person arrestee, an stating:
“A custodial arrest of a suspect based on probable cause is a reasonable Amendment; intrusion under the Fourth that intrusion being lawful, a search incident arrest no requires additional justification. It is the fact of the *9 search, authority lawful which establishes the arrest a lawful custodial arrest and we hold that in the case of a the exception full is not an only search of person Amendment, it is but warrant of Fourth requirement at Id. ‘reasonable’search that Amendment.” a under also 440-41. 235, 477, at 38 L.Ed.2d at S.Ct. 800, Edwards, 415 in United States v. U.S.
Subsequently,
plain
Court made
1234,
(1974),
39 L.Ed.2d
S.Ct.
rule
to arrest
search for
incident
Robinson’s
evidence
when it stated:
extended
searches
to stationhouse
immediate posses-
“both the
and the
his
person
property
arrest
house after the
sion
be searched at
station
is
if
of crime
has occurred at
evidence
place
another
in evidence.”
discovered, it
seized and admitted
may be
at
2. Rule “When a indicates defendant a desire or inclination to waive counsel, may accept determines, court until it waiver court, appropriate questioning open after on the record in that the possesses intelligence capacity appreciate defendant to and consequences decision, fully comprehends: of his and charges against him, any 1. The nature of the lesser included
offenses, range penalties, including mandatory and the of allowable penalties, any; if minimum important 2. That counsel can render to him in assistance determining charges there whether be defenses mitigation thereof, preparing circumstances and in for and trial; representing him at phase inquiry a two holding requires
Our
Snead
suffi
“declaration”
once the
makes minimum
defendant
represen
self
right
cient to constitute an assertion of
If such circum
at
L.Ed.2d 799
State, 292
counsel. Johnson v.
to choose his
right
appointed
Renshaw,
Md.
(1982);
State
405, 439
Md.
A.2d
The court
Annot.
information which financially unable to to be That if the defendant found 4. would, counsel, if private Defender or the court the Public retain wishes, represent provide counsel him.” the defendant case, the instant as the trial recognized judge, the appellant was best seeking “hybrid” representation, making statement from which the court could reasonably conclude Thus, that he desired self-representation. needed to the threshold predicate trigger inquiry required by Snead or that Rule required 723(c) was This is missing. when underscored the record as a whole is considered. Ini- counsel, when Colvin his motion for tially, argued change he stated to the court five times that he did not wish to “fire” his When Colvin made this motion for a attorney. second time he was again seeking replace public defender with an of his choice at state attorney expense. When this was denied he asked to be “allowed to defend to a if he degree.” had asked to be Admittedly, [himself] allowed to more, defend himself and the first nothing phase Snead inquiry would have been triggered; but that was not the case. He modified those words unequivocal with the “to phrase degree.” We no error here. perceive
(2) next Appellant asserts several claims of error occurring the trial. during
(a) occurring during The first of Colvin’s claims of error *12 the trial concerns the selection process. parties, by jury their briefs, agree that in an unreported chambers confer ence the appellant sought individualized voir dire examina tion of prospective jurors. The court denied the request pursuant to 752.3 Maryland Rule claims Appellant prejudi cial error in this He contends that in death ruling. penalty cases the attitudes of jurors toward the death must penalty be inquired and, into as some could be jurors reluctant to Maryland provides: 3. Rule 752 may permit parties “The Court the to conduct an examination of prospective jurors itself conduct the If examination. the examination, permit parties court conducts the it shall supplement by any inquiry proper the examination further it deems prospective jurors or shall itself submit to the the additional questions proposed by parties proper.” it deems
102
such
in the
of other
answer
truthfully
inquiry,
presence
However, no
voir dire
au
necessary.
individual
is
jurors,
Court, nor
has
to the attention of this
thority
brought
been
dire under
have we
individual voir
any, mandating
found
concedes,
To the
as
contrary,
appellant
circumstances.
any
rule
as
contrary,
in the absence of a statute or court
in a
impartial
as the
results
fair and
long
procedure
selection
a voir dire rests
method and manner of
jury,
conducting
trial
Connor v.
discretion of the
court.
within
sound
906,
699,
denied,
171
cert.
368 U.S.
State,
543,
225 Md.
A.2d
State,
v.
100
see also
186,
(1961);
Langley
82
7 L.Ed.2d
S.Ct.
State,
Piles
233 Md.
281 Md.
103 record, to conclude that were others who by there strong harbored about the death who did feelings penalty not choose to their in other acknowledge feelings front of prospective jurors.
Under case presented the circumstances the instant by decision of the trial court to voir masse conduct the dire en did an abuse of discretion. represent
(b) The claim of second error the trial concerns during phase appellant’s to the on the challenge jury array ground discrimination. racial that “a Supreme
The Court has ruled consistently conviction stand if it is an of a cannot based on indictment or verdict of a from grand jury petit Negroes which were excluded reason of their Whitus Georgia, race.” v. 549-50,
385
545,
643, 646,
599,
U.S.
87
17
603
S.Ct.
L.Ed.2d
(1967) (citation omitted); Strauder v. West
100
Virginia,
303,
Mitchell,
U.S.
L.Ed.2d
(1972).
strives to
appellant
accomplish
there
stating that
one
only
Negro
array
principles
prohibit
5. The
which
discrimination in the selection of
grand juries
govern
petit
juries.
also
the selection of
Pierre v.
Louisiana,
(1939).
59 S.Ct.
What
to the ratio of black
one
in the venire
Negro
compared
only
he had
County,
of
population
to white in the general
discrimination, casting
case of racial
made out a
facie
prima
of uncon
to rebut the presumption
the burden on the state
a
we note that
defend
Initially
stitutional discrimination.
composition;
has
to a
of
right
jury
any particular
ant
no
selected
jury panel
is to have
regard
only right
of
representative
which is reasonably
from source
v.
Louisiana, supra;
Alexander v.
Swain
community.
Texas,
S.Ct.
Alabama,
Cassell
supra;
assertion that
Thus, the mere
(1950).
Appellant attempts the ratio brief, to show that given in his statistical analysis, Arundel County probability in Anne of blacks to whites 1 to with one is only Negro of eighty of a venire producing of blacks on the number From this he concludes 1700. the racial distribution of was disproportionate an invidi- therefore there was County population conclu- has drawn Appellant ous scheme to discriminate. to a panel eighty persons sions one by comparing only 370,775 We find this people. unpersua- population group law. sive and not in accord with established has held that not dis every Court Supreme fatal. The mere fact parity proportions constitutionally not in itself show in the number selected does inequality 398, 403, 65 Texas, discrimination. Akins v. 325 U.S. *15 Rather,
1276, 1279,
1692, 1696
what needs
(1945).
89 L.Ed.
facie case of
to be
in order to establish a
proven
prima
disproportionately
unlawful discrimination is that none or
few the
class or race have been
particular
of
members of a
See,
of time.
selected for
over a significant period
jury duty
482,
1272,
97
51
Partida,
Castaneda v.
430
S.Ct.
e.g.,
U.S.
L.Ed.2d 498
facie case of invidious dis
(1977) (bare prima
crimination
(11 years) dispro
with
of
continued
proof
long
Alabama,
v.
portion
of
Coleman
composition
grand jury);
22,
2, 19
389
22
facie case
(1967) (prima
U.S.
88
L.Ed.2d
S.Ct.
established
that no
had ever served on
Negro
evidence
by
if
had served on
grand jury,
Negroes
petit jury
few any
trial);
Arnold v.
panels, up
the time of the defendant’s
Carolina,
773,
1032,
North
84
continuous omission of for 16 Negroes years 79 L.Ed. Alabama, ris v. U.S. S.Ct. (1935) (prima by testimony facie case established that no served on within the Negroes memory witnesses lives). Accordingly, who had lived there all their we are not that the made a facie case of persuaded appellant prima systematic discrimination and thus we find no error. 1983 Cum. (1973, Repl.Vol., Code
Maryland
208, pro
Judicial
Supp.),
Proceedings,
Courts &
§§ 8-201—
registration
vides for random selection of
from voter
jurors
error
lists.6
contends the trial
committed
Appellant
judge
Md.
State,
on
v.
this Court’s
Wilkins
by relying
ruling
992, 94
denied,
the information card
a clear and
provided
easy opportunity
for
discrimination.”
racial
Id. 405
at
92 S.Ct.
630,
U.S.
at
1225,
(c) Appellant’s next claim of error argument relates his (i) evidence was insufficient to sustain his convic- tion for murder, premeditated (ii) insufficient to sustain his finding of criminal agency.
(i) basis appellant’s first argument is other than evidence of multiple wounds, stab there was no simply other evidence from which the jurors could have conclud- properly *17 ed the killing was a premeditated so, act. This is he contends, because although number of can wounds be viewed as evidence premeditation, cannot, it without more, constitute legally proof sufficient of premeditation. Assuming, arguendo, we validity proposition, do
108 there was not believe because appellant helped thereby find other evidence from which the could premedita- are Thus, tion. the cases upon by appellant we find relied distinguishable from this case.8
In of law to determin- applicable Maryland principles are well premeditated when a murder is deliberate and ing settled: must have pre be kill ‘premeditated’ design
“[T]o
time,
is,
that
ceded
an
length
the killing by
appreciable
It is
that the
unnecessary
time
to be deliberate.
enough
for any
deliberation or
shall have existed
premeditation
is discerned
of time. Their existence
particular length
State, 273 Md.
from the facts of the case.
Gladden v.
E.g.,
383,
State, 249 Md.
387,
109 tously close at hand. evidence was that the knife had previously been washed and on the placed kitchen drain- board; however, killing, took place at the stairs to an upper floor some distance from the kitchen. Obviously appellant had to have obtained the knife in kitchen, after his house, into the entry him; and carried it with gone and gotten the knife time, at a later and returned to the stairs to use In it. either case there was sufficient time for deliberation and premeditation.
Moreover, this Court has found sufficient time
reflec
for
tion and decision where there is an interval between fatal
blows or where the assault occurs over a
of
protracted period
time.
Chisely, supra,
firing of two or more shots
separated
an interval
of time was sufficient evidence of
deliberation and
premeditation
In Kier
jury.
v.
State,
513,
216 Md.
In this case there was evidence of a protracted assault and an effort victim to defend herself. Twenty eight stab wounds were inflicted to various parts the victim’s body. Some of these wounds were wounds defense-type found on the victim’s hands.
When this Court is required review the sufficiency of the evidence to support a criminal conviction, we follow the standard enunciated in Jackson v. Virginia, 307, 443 U.S.
110 State, 287 Tichnell v. (1979). 61 L.Ed.2d S.Ct. on review (1980). inquiry The critical Md. A.2d could reason the record evidence to “determine whether a reasonable doubt.” guilt beyond support finding ably at at 573. How L.Ed.2d *19 “ it to ‘ask whether ever, required the Court is not itself guilt evidence at the trial established believes that the Instead, a doubt.’ beyond reasonable omitted]. [Citations the whether, the after evidence viewing relevant question in the rational prosecution, any the most favorable to light elements of the fact have found the essential trier of could 318-19, at doubt.” crime reasonable beyond at 573 (emphasis original). S.Ct. at 61 L.Ed.2d the evidence here was this standard we believe Given view, was to conclude sufficient. the entitled our the knife from time which carried during appellant that the the protracted the to the stairway, compounded by kitchen him have assault, the was time for to of sufficient nature deliberation, Therefore, and kill. chosen, after to thought we no to this contention. find merit
(ii)
is that
the
argument
second
The basis for appellant’s
on
broken from the
glass
of his
found
fingerprints
evidence
and
that he
door
of
the evidence
(the point
entry),
basement
is insufficient
taken
the
pawned
during
robbery,
the items
disagree.
to
his criminal
We
agency.
show
the rule as to
McNeil
fingerprints
We stated
(1961):
Md.
findWe
surrounding
circumstances
found
fingerprints
glass
on the
broken from the basement
door
tend
exclude
hypothesis
print
at a time
than
impressed
other
that of
crime. The house
was a private residence not
to the general public.
accessible
door
basement
was located at the
back
house. By
location
door
on
basement
fingerprints
inference
glass
broken
it was
rational
that appellant
was there
There was no evidence that
unlawfully.
appellant
*20
was
but a
anything
stranger to the premises. Appellant
offered no evidence to the
Mrs. Sorrell testified
contrary.
that the basement
the
door was locked and
was intact
glass
on the
of
morning
her mother’s murder.
Sorrell
Susan
testified that the basement door
locked
glass
was
and the
intact
same
therefore,
that
afternoon. We
there
think,
that
was sufficient evidence from which the
“reason
jury could
exclude the
ably
hypothesis that the
at
print
impressed
a time other than
of
McNeil,
that
227
crime.”
supra,
Md.
300,
at
Eight after the murder days items appellant pawned taken from Sorrell home. concedes that Appellant pos- session of stolen absent reasonable property, explanation for possession, is evidence that the possessor prop- stole the erty. State, 474, 475-76, 244, Lewis v. Md. 171 225 A.2d 245 (1961). no Appellant offered reasonable explanation having possession. However, in his property argues he that items these were there- easily that, transferable fore, an equally plausible inference is raised that he was possessor merely goods stolen the thief. We 112 merit. verdict is not
find this to be without argument have merely jury might because the subject challenge Elsbery, inference. United States v. drawn another denied, 994, 100 cert. 1054, 1057 Cir.), F.2d 444 U.S. S.Ct. (2d “Further, the exclusive it is (1979). 62 L.Ed.2d conflicts and to . . . evidentiary function resolve United facts.” from proven draw reasonable inferences Ramirez-Rodriquez, v. (9th F.2d Cir. States Fitzharris, v. (5th 1977); United States F.2d denied, 2325, 68 cert. 988, 101 451 U.S. Cir.1980), light the evidence 847 (1981). Reviewing L.Ed.2d we the evidence favorable to the find prosecution most drawn and the inferences properly offered state of criminal finding agency. therefrom amply supported the fin circumstances show There were attendant murder, as well as were at the time affixed gerprints crime were in his items taken during evidence crime committed. possession after the
(d) representa trial counsel’s Colvin next contends that his constitutional so that he was denied tion was inadequate Furthermore, of counsel. right to the effective assistance representation claims of his objected quality Colvin he incompeten reflects counsel’s trial, and the record clearly cy. for the said Court Judge Digges believe what was
We
State,
Johnson
(1982),
“Moreover,
procedure,
the settled rules of appellate
under
presented
of counsel not
a claim of ineffective assistance
*21
not an
which will be
the trial
is
issue
generally
court
Warden,
Berndt v.
240
on direct
initially
appeal,
reviewed
Zimmerman
State v.
701,
(1965);
For these reasons this issue is best raised post under convic- tion procedures if Colvin so desires.
(3) Because he was not when present his motion for a heard, new trial was Colvin there argues was error commit ted. We see no merit argument and reject it. State, Ash v. 238 Md. 208 A.2d 691 we (1965), held that a hearing on motion for a new trial not part trial of the accused as contemplated and consti- by statutory
114
320,
at
208 A.2d
693. Neverthe-
tutional
Id.
at
provisions.
less,
his
was
because one
presence
asserts
appellant
required
issues
the racial
of the
composition
involved
he
raised
at the trial and
venire,
pro
an issue which
had
se
well
had additional information to offer to the
“he
have
our
Therefore,
argues,
holding Hughes
court.”
he
under
State,
216,
(1980),
v.
the influence of passion, prejudice, other arbi- any *23 factor; trary
(2) Whether the evidence or court’s supports jury’s of a
finding statutory circumstance un- aggravating der 413(d); §
(3) Whether the evidence supports or court’s jury’s
finding that the aggravating circumstances are not outweighed circumstances; by mitigating and (4) Whether the sentence of death is excessive or dispro-
portionate to the cases, in similar penalty imposed both considering the crime and the defendant.” Colvin does contend, not record, nor do we find from the that the death sentence was imposed under the influence of passion, prejudice, or other any factor. Further- arbitrary more, from our review record, we conclude the evidence supports finding by of sentencing authority, the statutory factor of aggravating murder committed while committing robbery. The evidence showed that jewelry taken from the Sorrell residence at the time of the murder. These items were pawned subsequently by appellant. Addi- tionally, victim’s wallet was found with open “absolutely in it.” nothing These facts clearly establish the of finding an aggravating circumstance under 413(d)(10). Moreover, § we conclude from our record review that this aggravating circumstance was not outweighed by any mitigating circum- stance (the sentencing found none).
In answer to Colvin’scontention that his case cannot
be distinguished from cases in which the death
penalty
we
imposed
note,
preliminarily,
there is no federal
constitutional requirement of
review in ev
proportionality
case in
ery
which the death
is
penalty
imposed.
v.
Pulley
-
Harris,
-,
871,
Article 414(e)(4), mandates Court, that the in § con- sidering imposition of the sentence, death determine dispropor of death excessive or “[wjhether sentence cases, in considering tionate to the similar penalty imposed [Emphasis supplied.] both the crime the defendant.” (Tichnell State, (1983) In Tichnell v. 297 Md. A.2d this Court’s function fulfill III), we discussed thoroughly review its mandate to conduct a ing legislative proportionate the “arbi found our review avoids sentences, death Id. at death capricious penalty.” trary imposition State, 563, 610, 18; 297 Md. 466, 468 A.2d Calhoun 45, 67 (1983). A.2d cases in
Based on the review Court thorough Supreme III, to be unfounded Tichnell we find contention appellant’s III and holdings Tichnell Calhoun. this Court’s under this issue. .dispositive of these cases to be We deem *24 (a) Review Proportionality we would III, permit In Tichnell this Court stated cases similar the defendant to to this Court’s attention bring account to the case then for us to take into scrutiny under 297 Md. the exercise of our review function. proportionality However, at 468’ A.2d 18. in the instant case review encom seeks to have our appellant proportionality murder to the nature regard cases without pass felony crime, which in view runs to the legislative our counter is mandate to “similar cases.” While murder mur review a der, the circumstances murder surrounding particular may well differ other of murder to the extent types from very This that one said to be similar to the other. be judgment the situation the instant case.9 In our by appellant 9. We have reviewed those cases submitted to us during and involved murders the course of robberies find committed them dissimilar: Bryan Quicldey: Quickley life a Keith was sentenced to for murder during sentencing authority robbery committed of a store. The circumstance, aggravating found one was committed the murder committing robbery. attempting while or to commit It found two age mitigating youthful defendant at the circumstances: of the other of this case should be with compared circumstances murder committed the course involving during cases therein committing robbery into a home and breaking not with cases of murder other felony involving robbery situations.
We have reviewed those submitted trial reports by 772A, in each of judges, pursuant Maryland’s capital to Rule have five which we selected sentencing proceedings deem to the framework of Article be “similar” within 414(e)(4). § to life
Ronald Johnson: Johnson was sentenced Leroy a court following sentencing proceeding bludgeoning death his aunt the course of an great during attempted in her home. The found that robbery sentencing judge latter was shown a reasonable doubt. It was also beyond shown of the evidence that three miti- preponderance circumstances existed: the defendant had not gating previ- violence; been found with a crime of ously guilty charged crime; range time of the of and criminal record. The and that the defendant was borderline at the intelligence with severe intellectual limitations both at the verbal performance prior measured levels. The defendant had no mitigating found circumstances were to out- weigh aggravating preponderance circumstances evidence. James Thomas Porter: Porter was to life for a murder sentenced during robbery gas committed of a station. The court sentenced imprisonment Porter to life when the became deadlocked after a reasonable time of deliberation. Gary imprisonment *25 Allen Miller: Miller was sentenced life for to circumstance, sentencing aggravating The murder. court found one committing that the defendant committed the murder while or at- tempting robbery. mitigating to commit The court found several circumstances; prior the defendant had no record of a crime of violence; participant the victim a was the defendant’s conduct or death; consented to the act which caused the the murder victim’s capacity appreciate was committed while the of the defendant to the criminality require- of his conduct or to conform his conduct to the substantially impaired ments of law was incapacity, aas result of mental disorder, intoxication; disturbance, mental emotional or proximate act the defendant was not the sole cause of the mitigating victim’s death. The weigh circumstances were found to out- aggravating circumstances. or duress, domination that Johnson acted under substantial as to of another but not so substantial person, provocation and the a defense to the complete prosecution; constitute the defendant was while the capacity murder committed his of his conduct or to conform to appreciate criminality im- of law was substantially conduct to the requirements disorder, mental as a result of mental paired incapacity, sentencing The disturbance, emotional or intoxication. evidence, that concluded, a judge preponderance outweighed aggravating circumstances mitigating to and, sentenced the defendant accordingly, circumstance life. of murder found Having guilty
Dean Oliver: been Hugh the course of during and murder committed felony sentenced home, subsequently of a the same burglary jury and findings An examination of the jury’s Oliver life. found no discloses that the jury determination sentencing not consider circumstance and did aggravating apparently The does reflect circumstances. mitigating report although involved in the crime there were two persons murder. second Oliver for the person blamed found guilty by jury Lawrence Johnson: Johnson was murder, housebreaking first degree daytime premeditated imposed A sentence of death robbery. from a day- The convictions stemmed murder conviction.10 the course of which Johnson housebreaking during time female, who was a 78 old year encountered Dwayne Mayers kicked, tied and then beaten, strangled brutally stomped, life imprisonment death. was sentenced to Mayers Dwayne jury in this offense. The sentencing for his participation circumstance, that defendant found one aggravating attempting committed the murder while committing circum- found two mitigating commit robbery. proximate of the defendant was not the sole stances: act death; co-defendant received cause of the victim’s and the 10. A new granted by sentencing proceeding the trial court. On February jury reimposed the death sentence. 1984 a *26 life However, sentence. in this instance the jury did find that the mitigating circumstances outweighed ag- gravating circumstances of the by preponderance evidence. of the report trial judge Johnson’s case indicates that he had a prior conviction for two daytime housebreaking, housebreakings as a juvenile, and a first degree murder which, conviction for on remand from the reversal of his death life penalty, imprisonment was To imposed. some extent Johnson’s background parallels that of the instant case. T. An
Dwayne Mayers: female elderly strangled death her home during course of a breaking and entering. Mayers was convicted murder by jury felony and subsequently sentenced the same by to life. That jury found one jury circumstance, aggravating murder during It also robbery. found defendant had no previous conviction for or violence; of a charge crime of that the murder was committed while the capacity defendant to appreciate criminality his conduct or to conform conduct his the requirements of law was as a substantially impaired result of mental mental incapacity, disorder, emotional dis- turbance, or intoxication; and that the defendant ofwas youthful age.
Glen This Sturgis: defendant, another, with along broke into a home intending and, it burglarize therein, while victim, Bridell, Mrs. returned home. She was kidnapped ultimately shot each of the intruders. A found Sturgis guilty murder and other offenses. The same jury was elected the defendant for sentencing and failed to thereon; agree a life sentence was thus imposed. There was evidence of two aggravating circumstances: the victim was taken as a and the hostage; murder was committed during the course of a The trial robbery. also judge reported there was evidence raised that the defendant was not the sole proximate cause of the death, victim’s and that the defendant was of youthful age the time of the crime. he Additionally, had cooperated with the and assisted police *27 in a life the The co-defendant received locating body. sentence on a of to first murder. plea degree guilty here above, contrast to the the defendant was 36
By years offense, old at the time of the with a record convictions for and assault breaking, storehouse burglary, larceny, Johnson and Dwayne May- back 1960. Ronald stretching had with ers been found or previously guilty charged Glen Mayers crime of violence. and Additionally, Dwayne at the time of the Sturgis were found to be of youthful age no Furthermore, crime. the record reveals evidence or the or mental defendant physical problems under the time of drugs the influence of alcohol at. findings is in to the in Ronald offense. This contrast in the case, Johnson’s as well as Dwayne Mayers’. jury no instant found one circumstance and aggravating case Johnson circumstance. In cases of Ronald mitigating but there was one factor Mayers aggravating Dwayne found aggra- three circumstances. The no mitigating case. in Dean Oliver’s There vating circumstances in Glen Sturgis’s evidence of two circumstances aggravating were also found case, but several circumstances mitigating to be present. death sentence view, imposition our jury’s an
this case was not aberration. review fulfilled our mandated Having proportionality on function, imposed we hold that the death sentence to the neither excessive nor disproportionate defendant was considering cases in Maryland, similar penalty imposed both and the defendant. the crime
(5)
death penalty
Colvin
finally argues
Maryland
violates
statute
unconstitutional because it
either
is
Constitution.
United
Constitution or
Maryland
States
deficiencies:
alleged
His attack focuses on seven
first
statute,
exposes
it
(a)
majority
because
does not reserve
penalty,
murderers to the death
degree
of extreme cases”
“a small number
this sanction
only
as required by the
Court in
Supreme
Georgia,
Godfrey
100 S.Ct.
(b) the statute mandates the death penalty upon finding of an aggravating circumstance and no mitigating circumstance;
(c) the death for a penalty murder felony conviction is disproportionate;
(d) the statute unconstitutionally placed upon the ac- cused the burden of proving existence of a mitigating circumstance;
(e) Articles 16 of the Maryland Constitution are violated the statute because it permits punishment unusual; which cruel and
(f) the statute is defective of constitutionally because the discretion vested in the sentencing authority;
(g) that the statute is unconstitutional as in the applied instant case.
(a) Colvincontends that 413(d)(10)11 Sec. fails to restrict the death to penalty exceptional cases. He over argues that half of the first murder degree convictions reviewed and reported the of Special Court since Appeals January, 1976, were based on murder and thus the statute felony cannot be deemed to the reserve death only penalty small number However, of extreme cases. we find appellant ignores to legislative intent restrict the death to penalty exceptional cases certain by providing specific requirements. Most important, to address appellant’s argument, is the 413(d)(10) 11. Art. states: § “(d) aggravating of Consideration circumstances. —In determin- ing sentence, jury, be, the court or as the case shall first whether, doubt, beyond any consider following a reasonable aggravating circumstances exist: the first attempting (10) The defendant committed the murder while degree.” to commit [*] robbery, [*] Jfc arson, [*] or rape [*] or sexual offense in ifc committing or felonies This sec- specific 413(d)(10). enumerated in section not which would tion does all of felonies encompass section Additionally, a first murder verdict. support degree in the the defendant Be a 413(e)(1) requires principal of first could be convicted degree.12 Although accomplices 413(e)(1) murder would be under section exempt felony they Therefore, if not did commit murder. they actually to what application limiting, contrary of the statute is are told which of Moreover, contends. we not appellant reviewed and the Court reported Special these cases set those offenses out Appeals specifically involved arson, first or sexual 413(d)(10), rape robbery, degree § in the offense, those were principals or which of convicted any it is to draw impossible first Thus degree. simply us from statistics such as Colvin would have conclusion do. I, “the
Further, as stated Tichnell supra, imposition we is limited to cases in which sentenc- the death penalty least one circumstance. ing aggravating finds at authority the exist- sentencing authority consider required A of death may ence of circumstances. sentence mitigating be if the circumstances do mitigating imposed only Id. 287 Md. at circumstances.” outweigh aggravating This supplied). statutory A.2d at 848 (emphasis limit designed imposition scheme is therefore Gregg number of extreme cases.” death a “small penalty *29 2929, 49 153, 182, 2909, 428 96 L.Ed.2d S.Ct. Georgia, U.S. 859, Court decisions. (1976), required by Supreme as
(b) Next, statute mandates argues Colvin situation, in a murder felony of the death imposition penalty find the existence automatically will since the factfinder applicable appeal, Only exception, to this is found in 12. one “engaged employed person to another If the defendant statute. pursuant to an was committed commit the murder and agreement murder promise of for remuneration or the remunera- or contract tion,” penalty. eligible be for the Article could death the defendant 27, 413(d)(7). § the felony murder factor Aside aggravating at sentencing. from the fact that in this case Colvin was also found guilty premeditated murder, I, and that in Tichnell we supra, constitutional, found statute we with facially disagree Calhoun, his 629, conclusion. See 297 Md. supra, 468 A.2d at 77 murder a (felony found be constitutional aggravat- ing factor).
What appellant fails to consider is the entire statutory
scheme which must be utilized
arriving
at its
jury
verdict. The jury must first determine whether the state
has proved
a
any
aggravating
beyond
circumstances
reasonable doubt. If so
it is
found
of the sentenc
right
ing
to then find
body
mitigating factors which
be
any
found to outweigh
circumstance, in which
any aggravating
event the
statute mandates
life sentence. This type of
procedure was “noted with
approval
United States
262,
Court in
Supreme
Texas,
6,
Jurek v.
271 n.
U.S.
2950,
6,
S.Ct.
2956 n.
124
(c) of the death imposition further that argues Colvin crime. murder is felony disproportionate penalty 584, 2861, v. 433 97 53 L.Ed.2d Georgia, In Coker U.S. S.Ct. the death emphasized Court (1977), Supreme it when was disproportionate was unconstitutional penalty however, noted, nature of the crime. The Court also “an is not it is established that death penalty for mur- ... at least punishment mode of unacceptable ” at As 2866, at 53 L.Ed.2d 989. 591, der.... Id. at S.Ct. as murder as well was convicted of premeditated Colvin of to the facts murder, his is argument inapplicable felony this case.
Moreover, view, a sentence imposition in our of excessive murder case is not necessarily of death a felony case must be evaluated on and unconstitutional. Each The Supreme of that defendant. culpability particular “ a constitu consideration as Court ‘individualized requires ” En the death sentence.’ tional requirement imposing 3377, 73 782, 3368, Florida, 797, 458 U.S. S.Ct. mund omitted). 1140, (1982) (citation L.Ed.2d we can however, which are, general principles by There of statute. a death constitutionality penalty measure the Court stated: Coker, Supreme unconstitu- is ‘excessive’ and Gregg, “Under punishment accept- if it makes no measurable contribution (1) tional more than nothing and hence is able goals punishment and suffer- pain and needless imposition the purposeless to the severity out of (2) grossly proportion ing; 2866, at at 97 S.Ct. the crime.” Id. at 989. L.Ed.2d As of these objections. statute avoids both Maryland statute limits the death
we previously, Maryland stated murder, with only commit actually sentence to those who 413(e)(1). Article for contract murder. exception one § at Florida, 458 U.S. supra, But see Enmund v. penalty at of death 73 L.Ed.2d 1152 (imposition
when one kill, does not kill or have any to attempt intention of in or a murder is an participating facilitating Coker, 592, “excessive at supra, 433 97 S.Ct. penalty”); U.S. 2861, 53 at L.Ed.2d at of death for (imposition penalty of rape an adult woman “is grossly disproportionate excessive punishment”). Thus, of the feature limiting statute, as as the Maryland well review set forth mandatory 27, in Article 414(e)(4), assures that the sentence will § be out of to the of proportion the crime. severity
The second requirement under is measure the Gregg against punishment acceptable goals. Two acceptable goals of punishment, retribution and deterrence of crimes capital by prospective offenders, are furthered the death when is penalty given to the man” in a murder “trigger felony case. of Speaking to the value capital punishment, Supreme Court observed: “ ‘Retribution is no the dominant of the longer objective law,’ York, 241, 248,
criminal Williams v. L New 337 US Ed 1337, 69 Ct 1079 S [1083] (1949), but neither is it a objective forbidden nor one inconsistent with our respect for the dignity men. Furman v. Georgia, 408 US [238] at 394-395, 346, 33 L Ed 2d 92 Ct 2726 S [at 2806-2807] C.J., (Burger, dissenting); id., 452-454, 346, at 33 L Ed 2d 92 S J., Ct 2726 (Powell, dissenting); Pow [at 2835-2836] ell v. Texas, 392 US [514] 531, 535-536, 20 L Ed 2d 1254, 88 S 2153, Ct 2145 (plurality opinion). In [at 2155-2156] deed, the decision capital punishment may be appropriate sanction in extreme is cases an expression the community’s belief that certain crimes are themselves so grievous an affront to adequate humanity only that the response may be the penalty of death.
[*] sfs sk [*] [*] [*] The value of capital as punishment a deterrent of crime is a complex factual issue resolution of which properly rests with the legislatures, which can evaluate the results of statistical studies in terms their own local conditions and with a of approach that is not available flexibility the courts. Furman v Georgia, supra at 403- [408 U.S.] 346, (Burger, 33 L 2d Ct 2726 Ed S [at 2810-2811] stat-
C.J., Indeed, many dissenting). post-Furman those effort define just responsible utes reflect such punishment those criminals which capital crimes and deterrent.” an effective probably most 183-84, 186, 96 Gregg Georgia, 2930-31, (1976). 880-882 L.Ed.2d deter felons from legislature That the seeks to Maryland crimes is coursé of other murdering during committing *32 for the will be penalty imposed clear. The threat that death well act as a deterrent. may murder in these situations the Court the in Enmund where Supreme Unlike situation kill “one who does not it not be a deterrent for found would taken,” 458 that life will be and has no intention or purpose 1152, in 73 at 797, 3377, 102 at L.Ed.2d U.S. at S.Ct. deter, and the ultimate legislature seeks to Maryland kill for, do actually available those who only sanction to kill of a another felony, engage commission during for remuneration. of first was convicted
As we stated Colvin previously, murder, it as so felony murder as well degree premeditated his punishment serve no purpose justify would his alone; is the sole basis for although murder felony argument. (e),
(d), (f) unconstitutionally that argues statute Appellant ac- on the to show proof mitigation the burden of places of the death violates cused; penalty that the imposition Declaration of Rights; 16 25 of Maryland Article and discretion; too has much sentencing jury not have sufficient discretion. sentencing does re raised, considered, and were These arguments State, 292 and, I as stated in Johnson v. in Tichnell we jected the first 542, regards 439 560 as 405, 436, (1982), Md. A.2d two contentions: con- here were thoroughly presented
“Both arguments State, however, . . Tichnell v. in . rejected, sidered and 695, 720-34, 287 Md. 830, 415 A.2d 843-50 and we (1980), deem the matter to be settled.” stated,
Further, we “the statute with complies general three methods of the discretion guiding sentencing vested under authority Gregg, Florida, Proffitt [v. I, L.Ed.2d 913 and Jurek.” Tichnell (1976)], 728-729,
supra
Md.
(g) Colvin Finally argues that the statute is unconstitu tional, case, as applied the instant because death penalty not be imposed on a murder felony theory when the defendant’s conviction was based on the same evidence felony murder. He relies on State v. 298 N.C. Cherry, 257 S.E.2d (1979), denied, cert. 446 U.S. 100 S.Ct. 2165, 64 L.Ed.2d (1980), to support this contention. We believe this reliance to misplaced. be
In Cherry defendant was degree convicted first murder. felony At the guilt determination of the trial phase the jury was not even instructed on premeditation deliberation. reversing death penalty remanding *33 for a new trial, sentencing North Carolina Supreme Court held:
“Once the has been used to obtain a underlying felony conviction of degree murder, first it has become an ele- ment of that crime and not thereafter may be the basis for additional prosecution sentence. Neither do we think the should be underlying felony submitted jury as an aggravating circumstance in the sentencing phase when it for, was the basis of, and an element capital felony added.) conviction.” (Emphasis State 257 S.E.2d Cherry, at 567-68.
However, the Court further stated:
“Nothing we have said herein should be construed to foreclose consideration of the aggravating circumstance found in G.S. 15A-2000(e)(5)13 when a murder occurred 15A-2000(e)(5) (1977), 13. N.C.Gen.Stat. § states: felonies of of the enumerated during the commission one degree convicted of first but where the defendant was and deliberation. murder on the basis of his premeditation that aggra- In such should consider case, properly at 568. sentence.” Id. determining circumstance vating of case, course, In of was convicted the instant Colvin con- Therefore, even under Cherry, murder. premeditated cir- as an sideration the underlying felony aggravating of find that the Supreme cumstance was We further proper. has the identical approved application Court implicitly as murder committed as act of felony part robbery support imposition a valid circumstance aggravating Florida, Proffit v. 428 U.S. death See penalty. L.Ed.2d 913 (1976). the facts The is not presented by issue decided Cherry Therefore, now whether of this we do not decide case. as an to the jury should be submitted underlying felony it when in the sentencing phase circumstance aggravating was the conviction. capital felony basis for AFFIRMED,
JUDGMENT WITH COSTS. DAVIDSON, Judge, dissenting: here determines that “the appellant majority a statement representation, making best seeking ‘hybrid’ he reasonably from the court could conclude which majority desired Consequently, self-representation.” the threshold trigger concludes that “the needed predicate c Rule 723 required Snead or that inquiry required by view, I do not the accused’s my missing.” agree. “Aggravating Aggravating circumstances which Circumstances. — following: be shall be limited to the considered *34 (5) felony capital was committed while the defendant of, abettor, engaged, an in the or or was an aider or commission commit, attempt flight committing attempting to or to after or commit, arson, any robbery, rape, burglary, kidnapping, or aircraft piracy throwing, placing, discharging a or or the unlawful destructive device bomb.”
129 statement here was sufficient to Ac- trigger inquiry. I dissent. cordingly, respectfully
An accused in a criminal prosecution has the constitutional proceed Renshaw, to 276 right without counsel. State v. 259, 267, Md. v. (1975); 347 A.2d 225 see also Faretta California, 806, 818, 45 U.S. L.Ed.2d State, In (1975). 122, 127, Snead 286 Md. A.2d we (1979), considered “how the to right self-representa tion must be asserted.” the minimum “dec establishing laration” sufficient to to constitute an assertion the right self-representation, we said: it,
“As we see such declaration serves to alert the trial judge Therefore, that further be inquiry necessary. statement any defendant from by which court could conclude that defendant desired self- reasonably representation added.) would be sufficient.” (Emphasis Thus, this Court in Snead established that it is not necessary for an accused to make an unequivocal indicating statement a desire to represent himself in order to an trigger inquiry the trial by court to is determine whether the accused entitled to exercise the right self-representation. Snead,
Additionally, this Court described inquiry be pursued the trial court indicates, when accused “declaration,” minimum a desire to defend There himself. we said:
“When the defendant so indicates a desire defend pro se, must, the court determine appropriate inquiry, he Faretta, whether wants to so.’ ‘truly do First, S.Ct. at This has inquiry two phases. [95 2532]. the court should ascertain whether the ‘clearly defendant wants to defend himself. If a defend- unequivocally’ court, ant makes known to the noof doubt or admitting himself, that he desires to misunderstanding, represent to do so has been right asserted. properly “Once the has defendant clearly unequivocally de- se, clared his desire to proceed pro phase second inquiry triggered. *35 of Procedure implements
Rule 723 of the Rules Maryland its counsel, and for waiver of the constitutional mandates the details c of Rule mandatory. are Section provisions a a indicates made defendant the to be inquiry ‘[w]hen ’ it is Thus, . . to counsel. . desire or inclination waive right asserted his when has properly invoked a defendant of the inquiry to and two pro governs phase defend se a defendant desires ‘truly’ to determine whether required in a a defendant short, to defense. his own manage right the who has asserted properly criminal prosecution effec- has, to and under our procedures, defend himself to counsel, has the right waived the assistance of tively 127-28, 286 Md. at Snead, absolutely.” self-representation omitted). (citations 406 A.2d at that when an accused makes Thus, this Court established the to asserting right self-represen- minimum “declaration” to tation, trial must conduct an determine inquiry the court to and wants whether the accused “clearly unequivocally” court represent himself. If trial determines him- to represent accused and wants “clearly unequivocally” as- self, been self-representation properly to has right an then to conduct serted. The trial court is required to Rule 7231 determine inquiry pursuant Maryland provides: 1. 723 c Md.Rule waive indicates a desire or inclination to “When defendant determines, counsel, may accept until it the court waiver court, open appropriate questioning that the on the record in after possesses intelligence capacity appreciate and defendant decision, fully consequences comprehends: of his and him, against any charges included lesser “1. nature of mandatory offenses, penalties, range including and the of allowable any; penalties, if and minimum important him in can assistance “2. That counsel render charges determining may there be defenses to the whether thereof, mitigation preparing for and and in circumstances trial;
representing him at plead guilty, counsel “3. That if the defendant intends to even developing presenting be of substantial assistance disposition; or other information which could affect sentence whether the accused has competently intelligently waived right to assistance of counsel. shows,
The record here to the asser- contrary majority’s tion, that the minimum accused’s statement was a “declara- tion” sufficient to trigger two-phase required by inquiry *36 Snead. the During pretrial proceeding, following colloquy took place:
“COURT: to Now there before start anything you address the . . . motions that— jury? any Any
“MR. PAYNE There were some [Defense Counsel]: motions, I think.
“COURT: What are sir? they, Well, “MR. has PAYNE: Mr. Colvin some proper person motions.
“COURT: Alright.” added.) (Emphasis recess, After a the as colloquy continued follows: honor, “MR. PAYNE: Your I believe Mr. has Colvin some motions which involve proper person.
“COURT: Hand them to Court please. (Long pause) Pass them to . the Court. . . up ...
“DEFENDANT: At this time I’d like to speak about some motions that I drew of One the motions up. is the concerning counsel, removal of I for which my in applied for another court.
“COURT: Alright. What do want to it? you about say “DEFENDANT: I wrote . .. already wrote already verses to the change counsel. I believe that because improper because support, of the nature of the charge, because the has State allowed in cases the State’s Attor- . . State, ney uh, uh . . counsel to be for paid representation of the defendant because I need the coun- sel of my choice to properly represent me in the nature of “4. if the financially That defendant is found be to unable to counsel, private would, retain the Public Defender or the court if wishes, provide represent defendant counsel to him.” my
this I ask allow me to choose case. State counsel and reimburse him his service.
“COURT: else? Anything concerning There’s-another motion “DEFENDANT: if case is be to a myself degree allowed defend allowed to on. go added.) (Emphasis
“COURT: else?” Alright. Anything Attorney Assistant State’s said: Subsequently, “MR. LEVITZ Before Attorney]: State’s [Assistant if, in I defendant’s jury comes wonder view remarks, an into Rule 723 would be appropriate? inquiry mind, I’m defendant not clear whether the Judge, my has or not.’’ (Emphasis himself requested represent added.) as-
After removal of his accused’s motion for denying Defender, the trial signed Public court concluded and conse- accused was requesting “hybrid representation” There- *37 that a “Rule 723 was quently inquiry” unnecessary. after, as continued follows: colloquy bring- matter spoke
“DEFENDANT: You of a serious last .. at our peer a of counsel. At our ing change about and assigned last both accused motion we hearing [the to relieved of each other. Public be requested Defender] hisself Mr. can for the matter now. speak Payne added.) Well, (Emphasis it’s denied.” “COURT: “to be he view, In statement that desired accused’s my not clear and to a was a allowed to defend myself degree” Rather, it for unambiguous request hybrid representation.2 majority to agree that Colvin “stated 2. I with that the fact do not , attorney,” ‘fire’ to his five times he did not wish court seeking ‘hy- supports “was best the conclusion that accused hearing held representation.” made at a brid’ statements were These County before May Baltimore on 1981 in Court for 14 the Circuit Buchanan, hearing, Judge accused’s Sr. William R. At granted change removed was case was motion for a of venue County. Anne Arundel the Circuit Court for pretrial proceeding here was which we are concerned The with County August Anne Arundel held the Circuit for on 18 1981 in Court
133 an equivocal was statement that could reasonably support a conclusion that only requested “hybrid” accused a representation but also conclusion accused desired that the circumstances, Under self-representation. these inquiry Snead required by triggered.
The record here
did
shows
the accused
not desire to
represented
be
Additional
assigned
his
Public Defender.
the accused
made
“to be
to defend
ly,
request
allowed
myself to a
This
was not articulated in
degree.”
request
of a
counsel,
terms
desire to act as
assist
co-counsel, to
.
himself conduct
particularized
trial,
some
or to
aspect
3
have counsel
him
advise
the course of the trial.
during
Judge
There, notwithstanding
before
F. Mackall Childs.
the ac-
May
cused’s 14
1981 statements that
then
he did not
wish to “fire”
attorney,
initially
his
expressed
the accused
with
dissatisfaction
his
assigned
my
Public
Defender
moved for “removal of
counsel.”
any
during
August
pretrial
accused did not at
the 18
1981
time
proceeding express
assigned
a desire to retain his
Public Defender.
Indeed,
myself
degree”
after the accused’s motion “to
to a
defend
denied,
again
represent-
he
indicated that he did not desire to be
assigned
ed
his
him
Public Defender and wanted
removed.
unequivocal
view of the
that he
accused’s
statements
desired the
Defender,
assigned
during
August
removal of his
Public
made
the 18
pretrial proceeding,
previous
1981
his
statements that he did not
Defender,
assigned
during
wish
May
to “fire” his
Public
the 14
made
proceeding
county
judge,
in another
before another
do not lend
support
August
to the
that on
conclusion
1981 he “was at best
seeking ‘hybrid’ representation.”
significant
request
It is
ordinarily
“hybrid”
3.
to note that
representation
expressly
articulated in terms
a desire:
(1)
co-counsel,
Lang,
act as
United States v.
527 F.2d
(4th
denied,
Cir.1975),
cert.
96 S.Ct.
47 L.Ed.2d
(1976);
Swinton,
F.Supp.
(S.D.N.
States v.
United
Y.1975);
*38
defense,
(2)
Hill,
1019,
to assist in the
United States v.
526 F.2d
(10th Cir.1975),
denied,
940,
1676,
1023-24
cert.
425
96
S.Ct.
(1976);
quest
being
myself.”4
terms of
determined that
the accused
ver, even- after the trial court
the accused
representation,
not
to “hybrid”
entitled
he
desire to be represented by
that
did not
again indicated
States,
958,
357,
(1970);
Duke v. United
L.Ed.2d
State,
State,
721,
(9th Cir.1958);
Md.App.
v.
44
42
255 F.2d
725-26
Wilson
318, 327,
276,
(5)
1058,
Md.App.
(1979);
Beard v.
408 A.2d
399 A.2d
1383,
288,
(1979);
trial,
provide
during the course of the
to have counsel
advice
466,
Cir.1969);
Alabama,
(5th
468-69
Shelton
Lee v.
406 F.2d
States,
(5th Cir.1953).
205 F.2d
812-13
United
representation
“hybrid”
request
was the
for
In none of these cases
expressly
in
used in this
be allowed
articulated
myself
the terms
case—“to
degree.”
a
to defend
to
view,
my
request
be
to
4. In
affirmative
to
“allowed
the accused’s
degree”
coupled
phrase
myself”
“to a
is
when
with the
defend
even
self-representation
strong
for
as that
of a desire
as
a declaration
Snead,
here,
Snead,
by
as
accused
In
made
initially
the accused
replace
of his
to
his counsel with counsel
indicated a desire
denied,
said,
request
“I
the accused
don’t
choice. When that
Snead,
attorney
at
406 A.2d at. 100.
want no
then.”
Md.
Thus,
represent
expressly stated that he wanted to
Snead never
Although
Special Appeals
a
found that
desire
himself.
for
Court
statement,
self-representation could not be inferred from Snead’s
to
found Snead’s statement
be a minimum “declaration”
this Court
self-rep-
reasonably support
desired
a conclusion
he
to
sufficient
Snead,
286 Md. at
A.2d
103.
resentation.
“appellant’s
majority
reliance on Snead is
asserts that
private
engage
misplaced”
appellant
a
“did not seek to
because
attorney;
attorney,
have
desired to select his own
rather he
however,
fact,
by
attorney
the State.” That
reimbursed
services
distinguishing
as
from the instant
cannot serve
case.
an
a basis for
Snead
Snead,
any
concerning
question
this Court did not consider
Rather,
indigent
right
representation
accused’s
to
counsel.
question presented
was ‘denied his Sixth
was “whether Snead
Snead,
right
self-representation....’”
286 Md. at
Amendment
particularly,
question
was whether
Under the present accused’s declaration was sufficient to alert the trial that further court inquiry the accused’s statement con- necessary. Consequently, stituted a declaration sufficient to an require inquiry ascertain whether he wanted self- truly unequivocally representation. That was never made the trial inquiry Thus, court. the second phase inquiry governed by Md.Rule 723 c—whether the right assistance counsel competently waived—was not intelligently pursued.
The failure of the trial court to
essen-
pursue
inquiry
tial
to a determination of the right
without
proceed
counsel necessitates
Snead,
reversal of the
judgments.5
Md. at
5. of this I need not consider the other issues majority opinion. addressed in the