*1 LLOYD FRANKLIN DAVIS STATE OF
MARYLAND Term, 916, September 1974.] [No. September
Decided Moore argued before The cause was Gilbert, Mason, JJ. Defender, Henderson, Assistant Public
Dennis M. Murrell, Defender, brief, H. Public on the whom was Alan appellant. Stutman, Attorney General, R. Donald Assistant Burch, Attorney General, were Francis B. whom Clarence General, Kelly, V. Attorney Lawrence Sharp, Assistant W. *2 Allegany County, Michael R. Attorney State’s for Allegany County, Attorney Burkey, State’s Assistant for brief, appellee. for on the J., opinion of the Court. J., delivered Gilbert, Moore, page dissenting
dissents filed a infra. appeal are whether this before us on issues burglary properly pled guilty to three counts of who pleas, his his constitutional apprised, he when entered whether, self-incrimination; and with against counts, for the there was a factual basis respect to two pleas. Davis, charged a
Appellant, Lloyd Franklin with nine counts of March information on criminal 14, 1974,he entered burglary. arraignment on March At April 22, prayed jury trial. On guilty a of not a for case was called Circuit when the Honorable Harold E. Allegany County before The that Mr. Naughton, appellant’s informed the court counsel first, pleas sixth and to enter Davis desired thereupon The State of the information. ninth counts accepted, pleas if were it stet the would announced that judge remaining The trial then addressed counts. appellant: following questions to the Mr. please, Mr. Davis. Stand
“BY THE COURT: are you Davis, in order make certain pleas entering your these three counts degree freely, knowingly willingly, and with some you few intelligence, necessary ask questions and determine fact. you please your state full
Now would name? Davis, Lloyd DAVIS: Franklin Jr.
MR. you my THE Are able to hear BY COURT: questions? DAVIS:
MR. Yes sir. you BY THE COURT: And now under are any alcohol, drugs, influence of pills narcotics any kind?
MR. DAVIS: sir.No you BY THE represented by COURT: Are attorney case, present and if so is he you at this time?
MR. DAVIS: Yes sir.
BY THE COURT:And what is his name?
MR. DAVIS: Mr. Robb. you THE BY COURT: have Now been furnished copy the information filed in this case? MR. DAVIS: sir. Yes
BY THE And you have read the .COURT: your attorney? information and discussed it with *3 MR. DAVIS: sir. Yes you
BY THE fully COURT: Do understand the charges you three pleas to which have entered guilty?
MR. DAVIS: Yes sir. BY THE charges you’ve COURT: Now pleas guilty entered burglary, are to three counts burglary, felony each for which this give you twenty years could prison on each charge, sixty years. you or a total of Do understand that, Mr. Davis?
MR. DAVIS: Yes sir. anyone you BY THE promised COURT: Now has go easy you you pleas that would if entered guilty?
MR. DAVIS: No sir. promises Any BY THE COURT: or been threats you plead guilty? made to induce DAVIS: sir. MR. No you THE if
BY COURT: You understand that plead not the trial the State would open produce against you in have to witnesses Court, you and that right through would have the your attorney to cross-examine all of them?
MR. DAVIS: Yes sir.” question The next by pertained asked the court appellant’s privilege against self-incrimination: you
“BY THE you COURT:Do if also understand plead guilty you not would not have to take the your witness stand in you own defense unless so, you desired to do and if did not take the stand prosecuting attorney may not comment or your make reference testify? failure to MR. DAVIS: Yes sir.
BY you THE COURT: Do understand that? Do you also you plead understand that if not you have by Jury by Jury, Court without a yours? choice would be you At the trial presumed would be innocent until proved guilty beyond a reasonable doubt.
MR. DAVIS: Yes sir. BY THE COURT: Now I you have recited to rights certain constitutional you which have as a defendant in a you criminal case. Do understand by pleading guilty you waiving are fact rights? these
MR. DAVIS: Yes sir.” The State requested was then give the court its *4 “version of these three responded cases” and as follows: May
“MR. please Court, KELLY: the the facts in these cases would be day that on the 11th of February, 1974, Morrissey Lieutenant Kenneth of Department Cumberland tip Police received a Robb, home of Carl Pete located at 716 Road, Cumberland, Winifred Maryland, would be broken and evening. entered that Morrissey company
Lieutenant Corporal City McGowan and other State and of Cumberland They policemen went to the residence. staked the premises out, being place inside of the evening approximately 8:30 around 8:00 hours o’clock,during day. police the dark hours of individual, they did observe an who would officers case, Lloyd recognize in this Mr. Defendant Davis, sliding glass pop the door as an Franklin place, premises, was came into entrance to company with premises in two arrested on the individuals. other being custody, Mr. was into Davis
After taken F. Baker of the State’s questioned William having fully Attorney’s Office, after been advised warning. give Mr. did Davis constitutional guilt indicating his both in the Pete Robb statement I described and two other home which have Steiner premises, one the home Charles Niagara Street, was which located at day January, burglarized the 29th on Bishop located 1045 of Jack Carter also the home Cumberland, City which Walsh Drive February. I’ve As burglary occured on the 6th original in an indicated, Mr. indicated both Davis 11th, 1974, February given Monday, statement supplemental Baker, in a statement Mr. February 12th, 12th, Tuesday, February dated with the he involved indicated 1974. He he had these homes that co-defendants; broken homes in addition other plead has he during period time. the area regard might I indicate property of the total value home it the Carter of.... pleading He’s not THE COURT:
BY he? he was. MR. KELLY: believed Yes, he is. That’s sixth BY THE COURT: count. *5 regard
MR. KELLY: Yes sir. With to the Carter Honor, property, the total Your value of the home, property removed from that which was during day, broken the dark hours of the Approximately worth of that $890.00. $756.00 recovered, leaving property has been a total addition, In for of there was unaccounted $134.00. damage to a door that was broken. With
$75.00
regard
Steiner,
to the home of John W.
the total
property
premises
value of the
removed from those
during
burglary that occurred on the 29th
January, ‘74,
property,
of that
$680.50.$100.00
single
ring,
recovered,
that is a
diamond
has been
leaving
property
a total unaccounted
loss of
damage
And in addition there was
$580.50.
$80.00
regard
to the basement door. With
to the Carl Pete
home,
property
there was no
stolen inasmuch
Robb
apprehended
as the defendants were
on the
However,
premises.
damage
there was
to a
$50.00
property,
no
I’ve
bedroom wall. There was
indicated,
premises.”
taken from
of the facts
hearing the above statement
After
statement,
agreed with the
ascertaining
24, 1974,
guilty.
April
appellant’s pleas of
On
accepted
court
five-year sentences.
imposed three consecutive
the court
by appellant,
question raised
principal constitutional
439,
App.
English
State, 16 Md.
v.
upon
based
our decision
748,
granted,
Md.
dismissed
cert.
A. 2d
guilty pleas
acceptance
prior
July 3,
is that
Naughton
if
elected to
Judge
he
informed
he was not
inference of
no
the witness stand
did not take
stand trial and
testify.
from his failure
guilt
be drawn
could
Malloy v.
State, supra,
English
quoted
we
In
from
meaning
(1964)
Hogan,
“Therefore, in order for an accused to waive the privilege against applies self-incrimination as it charge trial on criminal he must understand right testify that he has the not to and that no may unfavorable inference arise from his not testifying. affirmatively Unless the record shows that he understood this and waived it in sense, acceptance the constitutional of his guilty is not effective.” we English
First
observe that our
decisions
and
State,
App. 570,
(1970),
Williams v.
10 Md.
“That each of the three
mentioned
—
self-incrimination,
jury
confrontation and
specifically
expressly
must be
enumerated for
See,
Coiner,
1059,
(4th
1972);
Wade v.
468 F. 2d
1061
Cir.
United States
Frontero,
406,
(5th
1971); McChesney Henderson,
v.
482
v.
F. 2d 1101
Wilkins v.
2d
United States
constitutional
present...
452 F. 2d
415
Cir.
1974);
(1973);
Lockhart,
626,
(8th
F. 2d
n. 1
Todd v.
490
628
Cir.
Erickson,
1974);
Turner,
(9th
v.
F.
See Michigan held record Supreme that “the where of each has informed the defendant been must show that rights he waives three constitutional all State, see, 325 N.E.2d pleading guilty;” and Williams v.
(Ind.
Henderson,
“First,
‘you
advise the
must
contrary.
is, however,
authority
weight
to the
courts
2.
of
State
The
Turner,
(Wis.
State,
v.
See,
N.W.2d 763
N.W.2d 193
State
v.
Edwards
1971);
concurring
(Nebr. 1971)
in the
numerous cases cited
see
Supreme
in the
of Louisiana
State
of the
Court
of Justice Summers
Supreme
(1972).
addition,
Johnson,
the South Dakota
2d 654
In
v.
Court
Erickson,
constitutional law
some manner
constitutional
confrontation and
257 So.
Nachtigall
appears
v.
from its statement
to have retreated
principle
(1970)
of the
“it is now settled as a
N.W.2d 198
that
plea
stand unless the record
that a
of
cannot
intelligent
of
waiver
the three
a free and
indicates
rights
— self-incrimination,
Boykin
mentioned
—
understanding
jury
nature and
trial
and an
(1973)
consequences
plea.”
the
the
Merrill
II “strong Appellant factual basis” for the concedes alleged nighttime burglary of to count six which the dwelling Bishop Drive, Jack at 1045 Walsh of Carter 27, Maryland, (a). Cumberland, violation of Art. 30 He § See, Project on American Bar Association Standards for Criminal 4. Relating 4.2, Justice, Judge, Standards The Function the Trial § Recommendations, approved of 1972; Report Joint draft and and Committees Maryland Maryland and State Bar Judicial Conference Association Justice, implement the American Bar Standards for Criminal Association by Maryland Conference, April Guilty” approved “Pleas of the Judicial support for contends, however, is no such counts that there respect to the alleging nine the same offense one and Niagara Street, dwellings Steiner located at of Charles one) (count January 29, Cumberland, Maryland) on at 716 Winifred dwelling Pete Robb located of Carl the (count February Road, Cumberland, Maryland, on nine). dwelling (a) “Breaking with intent
Article entitled § felony” provides: or commit steal “(a) aiders, Every person, his abettors any counsellors, and enter dwell- who shall break steal, intent ing nighttime in the house away personal goods of another of carry take felon, any therefrom be deemed value shall burglary.” be shall the crime Judge Naughton by related to statement From factual full, quoted in Attorney, heretofore the Assistant State’s “caught literally abundantly clear that Mr. Robb burglarizing home of act” of “tip” had been received nighttime result of which as a a' Morrisey of Cumberland Police Kenneth Lieutenant Appellant argues property was taken Department. that no any as whether record is silent there and also that the premises. personal property its on the court, following explanation made the of the facts to respect Robb home: statement with home, regard Pete there “With to the Carl Robb property as the defendants was no stolen inasmuch premises. However, apprehended there were on the damage wall. There was no to a bedroom was $50.00 property, as I’ve indicated taken from premises.” is, course, implication above there was
The clear presence personal property premises on the and that the police precluded its stolen. scene factual for count one was is also that the basis It clear *9 inculpatory to the provided by appellant’s statements 60
police apprehension after his at the of Mr. home Robb police burglary. verification of is true It that count dwelling one identifies as that of Steiner Charles that, describing damage premises in to the entered and description property stolen, of the value of the Attorney dwelling State’s Assistant identified the involved in (not as “the home of John W. count one Steiner” Charles Steiner). Earlier, however, the State had disclosed to the apprehended when court that was he made an inculpatory “indicating guilt statement both in the Pete I in Robb home which have described and two other Steiner premises, one the home Charles located Niagara burglarized day Street which on the 29th added.) patent January, (Emphasis 1974.. . .” It subsequent W. reference to the home of “John Steiner” was inadvertence; and, any case, simply misidentification premises burglarized of the owner would not affect guilty plea burglary. factual basis for a crime
Judgments affirmed. Gilbert, J., dissenting: adopt
I the words of Mr. Justice Holmes Northern Sec. States, 197, Co. 400, 436, 468, v. United S. 193 U. 24 S. Ct. 679, (1904), L. Ed. that: [Although
“. . . think it useless undesirable, rule, express as a dissent, I feel bound to do give my so this case and to reasons for it.” Court, speaking through
This Judge English Chief Orth v. State, App. 439, 16 Md. 298 A. granted 2d 464 cert. July 3, 268 Md. 1973,1 quoting dismissed after from our summary App. 570, Williams v. 10 Md. 571-72, A. (1970),analyzing 2d Boykin Alabama, S. 395 U. appeal apparently 1. The dismissed it had been because improvidently granted. *10 point to went on 1709, L.Ed.2d Ct. 89 S. that: 445-46 out testify in right his to has the
. . accused [T]he right statutory this This is a own behalf. Although he is a Code, 4.
jurisdiction. Art. § compellable witness, witness he is not a competent be, him statute, he for to make nor could under against guarantee would violate so right Thus, the constitutional self-incrimination. adheres to
against compulsory self-incrimination respect tendering plea of the accused plea testify which the right at the trial his not to in this context that believe that it is waives. We against privilege Boykin refers guaranteed the Fifth self-incrimination takes in a waiver that as involved Amendment in a state place plea of is offered when a 243. The Fifth 395 U. S. at criminal trial. against privilege self-incrimination
Amendment person unless right of a to remain silent means ‘the speak in exercise of his * * * he the unfettered chooses to penalty for such will, suffer no own and to 1, Therefore, Hogan, Malloy 378 U. S. silence.’ an accused to waive in order for applies against to his trial self-incrimination he charge he must understand on a criminal no testify not to and that has the unfavorable testifying. not Unless may arise his from inference affirmatively that he understood shows the record it in the constitutional privilege and waived this guilty is not sense, acceptance omitted). (Footnote ’’(Emphasis supplied). effective. Maryland injects majority into the
In instant case the not heretofore guilty pleas, a doctrine relative to law pleas are as such concerned. insofar followed panacea, “substantial newly discovered They style their invoking underpin of the “substantial compliance”. To upon doctrine, majority rely the trial compliance” did informing the accused not 1) the accused judge’s so, he to do unless desired witness stand have take the stand, to take “the 2) did not choose if he attorney not or make ... comment prosecuting [could] testify.” Seemingly failure ... reference to accused’s] [the articulating those reasons either conceding, not two but jointly “substantial individually fail to amount upon judge’s *11 majority trial compliance”, seize the the presumed advising accused was accused that the beyond a doubt. The proven guilty reasonable until innocent together conclude majority reasons and add the then three aggregate, “substantial that, there has been in the judges compliance”. holding, are As a caveat to trial “preferable” is that defendant be it admonished that “may testify used as his failure to not be an informed that guilt.” weighed on issue of inference be to majority me that the has the effect of to It seems establishing eroding English, supra, a case case may longer no home in approach. Bench and Bar alike The through beacon, guide lit to them English, a well plea surrounding guilty. a The trial maze of constitutional court, cast are now adrift the advocate the accused saps English majority opinion rudder. The both without a bright light. extinguishes its Vinson, dissenting Trupiano opinion in in a Chief Justice States, 699, 716, v. United U. S. S. Ct. 1663, 1675
L.Ed. stated: best, operation rule “At which the Court expected may time today enunciates the first be already. replete in a field confound confusion complexities.” my may In late Chief Vinson well have view the Justice been writing about the instant case. accused, majority that an equate
As I fact see it the may an un- of fact not draw must be informed that the trier testify, the accused’s failure favorable inference from attorney prosecuting that a the accused’s told testify. will not be allowed to a failure reference make analagous escapes are me. two Precisely how the situations examine,” I do not understand; pause; I but still “I do not comprehend. judge be
Furthermore, is to noted Mr. Davis that: informed you are make certain . order to
“. . [I]n your pleas guilty to these three counts entering of degree knowingly willingly, freely, and with some you necessary few intelligence, that I ask a it is of (Emphasis questions fact.” and determine supplied). it, provide law, does not I understand intelligence,” plea degree of with “some enter the
accused plea intelligently made. be Williams but rather that ascertain, upon we, henceforth, called supra. If are accused, degree case, “with some whether the each the full intelligence,” made and understood effect pit pit quicksand, is plea, upon a and the we tread intelligence required to If enter the measure bottomless. degree “some constitutionally valid *12 any be plea can intelligence,” I fail see how such is, constitutionally infirm. Unless accused visualize a human is vegetable,” difficult “a vernacular intelligence.” degree possess “some being who does not I belaboring needlessly, issue it follows that Without comply rule judge with the failed would hold that the trial therefore, error. English, supra, committed reversible for a new trial. reverse and remand would opinion If A in order. this Court is final word is very least, should, English buried,3 we at the then be merely funeral, not scuttle it provide it with a decent inference. Montaigne (1533-1592), Inscription Eyquem library. De
2. Michel I do not share. An