Jason Harry GORGE v. STATE of Maryland
No. 54, Sept. Term, 2004
Court of Appeals of Maryland
May 10, 2005
873 A.2d 1171
IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT, INCLUDING THE COSTS OF ALL TRANSCRIPTS, PURSUANT TO MARYLAND RULE 16-515(C), FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION OF MARYLAND AGAINST JERRY DENEISE JORDAN.
Annabelle L. Lisic, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), for respondent/cross-petitioner.
Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.
GREENE, J.
We are asked to determine whether a sentence of life without the possibility of parole may be imposed if the record does not reflect that the State gave timely written notice to the defendant of the State‘s intent to seek that sentence. Further, we are asked to decide if Mr. Gorge made voluntary statements to the police while hospitalized and recovering from serious self-inflicted wounds. On November 12-14, 2002, Jason Harry Gorge was tried by a jury in the Circuit Court for Baltimore County and convicted of one count of first-
We hold that the court may not impose a sentence of life without the possibility of parole unless the record satisfactorily reveals that the statutory conditions were satisfied, including giving written notice to the defendant at least 30 days before the trial. We also hold that Mr. Gorge‘s statements to the police were voluntarily made.
FACTS
In October, 2001, Mr. Gorge and his girlfriend, Dorothy Brooks (“Dorry” or “Ms. Brooks“), were living in his car. Both were addicted to heroin and cocaine. On October 27, 2001, Mr. Gorge and Ms. Brooks overdosed, attempting to commit suicide. Their attempts failed and on the following morning, they both awoke extremely “drug sick,” in the words of Ms. Brooks. According to Ms. Brooks, Mr. Gorge told her he was going to go to his mother‘s house to ask for money so they could “get well.” Ms. Brooks explained that getting well meant getting more drugs so that they would not continue to feel the pain of drug sickness. Ms. Brooks testified that she fell asleep and when she woke up, Mr. Gorge was back with a van. She got in the van with Mr. Gorge and they drove to the east side of Baltimore to purchase drugs. Ms. Brooks testified that Mr. Gorge told her that he borrowed the van from his grandfather. Eventually, they drove to a hotel in Pennsylvania and consumed more drugs. Ms. Brooks testified that while they were at the hotel, Mr. Gorge confessed to her that he hit his grandfather over the head, punched him, and strangled him. Ms. Brooks also testified that after Mr. Gorge confessed to her, he took an overdose of sleeping pills.
On October 31, 2001, police officers in Baltimore found the body of Mr. Gorge‘s grandfather, Harry Gorge, Jr., at his home. The medical examiner determined the cause of death to be asphyxiation.
The Suppression Hearing
On May 29, 2002, the Circuit Court held a hearing on Mr. Gorge‘s Motion to Suppress. The State called Chief Wesley M. Haverkamp, who was on guard duty at the hospital in Pennsylvania between October 30 and November 2, working the midnight shift. He testified that Mr. Gorge was in and out of consciousness and that he seemed to be in pain. Officer Lawrence Burger, Jr., was on guard duty at the hospital from 8:00 a.m. until 5:00 p.m. on November 1. He described Mr. Gorge‘s injuries, noting that he had stitches on his neck from “ear to ear,” scratches and marks on his arms and legs, and puncture wounds. Officer Burger testified that Mr. Gorge was receiving medication in a pill form and through an IV, though he did not know what medication they were giving him. Officer Burger also testified that Mr. Gorge was restrained with shackles on one ankle and straps on both wrists. Officer Burger was present when two Baltimore County police officers arrived to interview Mr. Gorge.
Detective Kurt Wilhelm and Detective Alan Meyer, from Baltimore County, arrived at the hospital at 2:00 p.m. on November 1. Detective Wilhelm testified that prior to November 1, he had called the nursing staff several times to be updated on Mr. Gorge‘s condition. He also testified that on the day of the interview with Mr. Gorge, he contacted the police department in Pennsylvania and they informed him that Mr. Gorge was conscious and could be interviewed. Detective
Detective Wilhelm testified that when he and Detective Meyer arrived at the hospital, Mr. Gorge was awake and appeared to understand who they were. Detective Wilhelm told Mr. Gorge that they wanted to talk with him about what happened in Baltimore County, and according to Detective Wilhelm, Mr. Gorge agreed to talk with them. Detective Wilhelm described Mr. Gorge‘s demeanor as calm, alert, quiet, and subdued. Detective Wilhelm read Mr. Gorge his rights1 and he initialed each right and signed the form. According to Detective Wilhelm, Mr. Gorge did not want to write a statement, but he agreed to respond to questions. Detective Wilhelm‘s testimony continued as follows:
The first question I asked was, “How are you feeling?” His answer was, “Bad.” I asked him, “Do you want to talk to us about what happened in Baltimore?” He said, “Yes.” I asked him, “Are you up to it?” He responded, “Yes.” I said, “Can you remember what happened this weekend?” He answered, “I guess so.” I said, “What happened at your grandfather‘s house?” To this question, he didn‘t respond verbally. He just lowered his head and shook his head no. I said, “how did you get your grandfather‘s van?” He responded, “I took it.” I asked him, “Did you hit your grandfather?” He answered, “Yes.” The next question was, “Why did you hit him?” He said, “Yes, I don‘t know.” I asked him, “Were you and your grandfather fighting?” He answered, “A little bit.” Next question was, “Why did you go over to your grandfather‘s house? To get money from him?” He answered, “Yeah.” Next question is, “Did he give you any money?” He answered, “No, he wouldn‘t give me any.” The following question is, “Did you get into an argument after he would not give you any money?” He said, “Yeah.” Next question is, “what happened after that?” He responded, “We started fighting.” Question: Did you
hit your grandfather in the head with a bottle? Answer: Yes. Question: What kind of bottle? Answer: A drink bottle. Question: How many times did you hit him with the bottle? Answer: Twice. Question: Then what happened? The bottle broke. Question: What happened to your grandfather when the bottle broke? Answer: He pretty much went out.
Detective Wilhelm continued to tell of his interview with Mr. Gorge and testified that Mr. Gorge admitted to taking money, a van, and a shotgun from his grandfather. He also told the detective that he had tried to clean up after the fight and that he was not high but sick when he went to his grandfather‘s house. After Detective Wilhelm finished his questioning of Mr. Gorge, Detective Meyer asked him a few questions about the clean-up and the location of the body. Detective Wilhelm testified that at the conclusion of the questioning, which lasted almost two hours, Mr. Gorge read the statement and signed it, indicating that he understood what it said and that it was given voluntarily.
Defense counsel did not call any witnesses, but did admit Mr. Gorge‘s medical records into evidence for the purpose of showing that he was hospitalized with very serious injuries. The State stipulated that the records could be admitted, but the State did not agree as to the interpretation of the records, arguing that the interpretation would require expert testimony.
Defense counsel argued that Mr. Gorge‘s serious medical condition prevented him from making a voluntary statement to the police. She also argued that the police should have determined if Mr. Gorge was under the influence of any medication before interrogating him. The trial judge denied the motion to suppress and stated:
I am satisfied that the Miranda warnings were given to the Defendant in scrupulous detail. Detective Wilhelm couldn‘t have done anything more. He read each right to the Defendant individually. Then he had the Defendant go back and read each right and initial each right. I don‘t see
any requirement for any type of clearance from a physician. The Defendant was conscious. I found the testimony of Detective Wilhelm to be very credible. He indicated that the Defendant was alert. There were no promises made, no threats made, no inducements. The Defendant made the statement voluntarily. The substance of the questions and the answers in and of themselves to me demonstrate that the Defendant was perfectly lucid. *
*
*
He is asked in the beginning, how are you feeling. Bad. Next question, do you want to talk to us about what happened in Baltimore. Yes, he does. Are you up to it. Yes. I interpret that question to be a broadly worded question, are you fit enough to answer these questions. So, I think that the detective asked an appropriate number of questions in the beginning. The Defendant certainly had every opportunity to say no, I don‘t want to answer any questions. I don‘t feel well enough to answer these questions. I am sure the Defendant was feeling bad. Having heard the nature and extent of his injuries, I am sure he was feeling not so good, but feeling bad does not mean you can‘t make a voluntary statement. Being in the hospital does not mean you can‘t make a voluntary statement. Now, quite frankly, in evaluating the evidence I was concerned about the fact that the Defendant was in essence confined to the bed and couldn‘t leave the bed. I think that the restraints there were of little consequence and didn‘t have any effect on the Defendant given his medical condition. From what I have heard, he was not going anywhere at all anyway. He was in bed. It wasn‘t like these restraints that were put on him by the hospital personnel in any way or were to influence him to make the statement [sic]. So, for all the reasons the Court has stated, the motion is denied.
The Sentencing
On November 12-14, 2002, Mr. Gorge was tried by jury and convicted of one count of first-degree felony-murder, one
I will submit to the Court. We certainly were given oral notice prior to today. I will defer to the Court and as to the record as to whether or not our submissions that we have had prior notice satisfies the requirement. The State has filed written notice in written form today.
*
*
*
Your honor, again, as I said before, the Defense certainly had oral notice thirty days prior to even the June trial date that we originally had, that the State was going to seek the sentence that it was seeking. Again, Your Honor, we will submit that we had oral notice. Whether or not that satisfies the requirements of the statute is a matter for this Court to decide or perhaps for the appellate court to decide.
The State relied on an October 16, 2002 letter in which it made a plea offer to Mr. Gorge. The letter also contained a statement that the State would argue for a sentence of life without the possibility of parole, “pursuant to the Notice that has been filed.” The October 16 letter was not received thirty days before trial, but it made reference to a notice that
The Court sentenced Mr. Gorge to life without the possibility of parole for the first murder conviction and to fifteen years for the robbery. On appeal, the Court of Special Appeals affirmed the circuit court judgment and stated:
We agree with Judge Dugan‘s analysis. There is no indication in the record of this case, that when appellant was sentenced on March 3, 2003, he did not have at least 30 days notice that the State was seeking a sentence of life without the possibility of parole. Our rejection of appellant‘s “written notice” argument “shall not prejudice [his] right to assert [this claim] in a post-conviction proceeding, should he desire to do so.” Mosley v. State, 378 Md. 548, 573, 836 A.2d 678 (2003).
On August 25, 2004, we granted Mr. George‘s petition for writ of certiorari.
STANDARD OF REVIEW
The first issue raised in this case, whether Mr. Gorge may be sentenced to life without the possibility of parole without having received written notice of the State‘s intention to pursue that sentence, is purely a matter of law, involving the interpretation of a statute. As such, our review is de novo. Salamon v. Progressive, 379 Md. 301, 307, 841 A.2d 858, 862 (2004). The second issue, whether Mr. Gorge made a voluntary confession to the police, is a mixed question of law and fact. Winder v. State, 362 Md. 275, 310, 765 A.2d 97, 116 (2001). As a result, “we undertake a de novo review of the trial judge‘s ultimate determination on the issue of voluntariness. Our review of the circuit court‘s denial of appellant‘s motion to suppress is limited to the record of the suppression hearing.” Winder, 362 Md. at 310-11, 765 A.2d at 116. We note that while we are required to make our own independent
DISCUSSION
The Sentence
Mr. Gorge argues that the circuit court should not have sentenced him to life without the possibility of parole because the record does not reflect that the State gave him timely written notice, as required by statute. The State asserts that Mr. Gorge received oral notice well in advance of the trial date (a fact that he concedes) and that such notice satisfies the statute. The State argues, in the alternative, that Mr. Gorge waived his right to receive written notice because his counsel agreed at the sentencing hearing that she had actual notice before trial that the State would seek the sentence of life without the possibility of parole. We agree with Mr. Gorge.
As an initial matter, we hold that Mr. Gorge did not waive his right to appeal the question of whether the notice given by the State satisfied the statute. The State argues that defense counsel acquiesced in the trial court‘s ruling and, as a result, has no basis to appeal from that ruling. While defense counsel admitted to having actual notice of the proposed sentence and stated that she would “submit to the Court,” she also stated “[w]hether or not that satisfies the requirements of the statute is a matter for this Court to decide or perhaps for the appellate court to decide.” We believe that was sufficient to satisfy Md. Rule 8-131, providing in pertinent part that “[o]rdinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court.”2
(b) Penalty.—(1) A person who commits a murder in the first degree is guilty of a felony and on conviction shall be sentenced to:
(i) death;
(ii) imprisonment for life without the possibility of parole; or
(iii) imprisonment for life.
(2) Unless a sentence of death is imposed in compliance with § 2-202 of this subtitle and Subtitle 3 of this title, or a sentence of imprisonment for life without the possibility of parole is imposed in compliance with § 2-203 of this subtitle and § 2-304 of this title, the sentence shall be imprisonment for life.
A defendant found guilty of murder in the first degree may be sentenced to imprisonment for life without the possibility of parole only if:
(1) at least 30 days before trial, the State gave written notice to the defendant of the State‘s intention to seek a sentence of imprisonment for life without the possibility of parole; and
(2) the sentence of imprisonment for life without the possibility of parole is imposed in accordance with § 2-304 of this title.
The cardinal rule of statutory interpretation is to ascertain and effectuate the intention of the legislature. O‘Connor v. Baltimore County, 382 Md. 102, 113, 854 A.2d 1191, 1198 (2004). As noted by this Court in Oaks v. Connors, 339 Md. 24, 35, 660 A.2d 423, 429 (1995), “[t]he first step in determining legislative intent is to look at the statutory language and ‘[i]f the words of the statute, construed according to their common and everyday meaning, are clear and unambiguous and express a plain meaning, we will give effect to the statute as it is written.‘” Oaks, 339 Md. at 35, 660 A.2d at 429 quoting Jones v. State, 336 Md. 255, 261, 647 A.2d 1204, 1206-07 (1994). We strive to give statutes their “most reasonable interpretation, in accord with logic and common sense, and to avoid a construction not otherwise evident by the words actually used.” Greco v. State, 347 Md. 423, 429, 701 A.2d 419, 422 (1997). We note also that the statute at issue in this case is an enhanced penalty statute. Johnson v. State, 362 Md. 525, 529, 766 A.2d 93, 95 (2001). As such, it is highly penal, and must be strictly construed. Id.
The plain language of
In the present case, defense counsel admitted to having actual notice of the State‘s intent more than 30 days before trial. She also stated that “from what I remember, I thought
According to
The Court of Appeals of South Carolina has reached a similar conclusion. In State v. Johnson, 347 S.C. 67, 552 S.E.2d 339 (2001), Johnson was convicted on September 1, 1999 of armed robbery. Johnson, 347 S.C. at 68, 552 S.E.2d at 339. The State asked the trial court to sentence Johnson to life without the possibility of parole because Johnson had a prior armed robbery conviction. Id. The trial court refused to impose that sentence, finding that the State failed to give the written notice, as required by the South Carolina statute. Johnson, 347 S.C. at 69, 552 S.E.2d at 340. Similar to the case before us, the defense counsel in Johnson admitted that “[t]here was a lot of talk by the solicitor before trial that he was going to seek life without parole; however, I was never given any notice that he was going to seek life without parole in a written form.”5 Johnson, 347 S.C. at 68, 552 S.E.2d at 339. On appeal,
The South Carolina statute requiring the sentence of life without the possibility of parole for certain offenses provided that “[w]here the solicitor is required to seek or determines to seek sentencing of a defendant under this section, written notice must be given by the solicitor to the defendant and defendant‘s counsel not less than ten days before trial.” Johnson, 347 S.C. at 70, 552 S.E.2d at 340 (quoting
“It is well established that in interpreting a statute, the court‘s primary function is to ascertain the intention of the legislature. When the terms of the statute are clear and unambiguous, the court must apply them according to their literal meaning. Furthermore, in construing a statute, words must be given their plain an ordinary meaning without resort to subtle or forced construction to limit or expand the statute‘s operation. Finally, when a statute is penal in nature, it must be construed strictly against the State and in favor of the defendant.”
Johnson, 347 S.C. at 70, 552 S.E.2d at 340 quoting State v. Blackmon, 304 S.C. 270, 273, 403 S.E.2d 660, 662 (1991). The Court reviewed the mandatory nature of the language of the statute, and wrote that, “[f]or this Court to dismiss the clear and unambiguous language of the statute and merely require the defendant‘s counsel to have actual notice of the solicitor‘s intent to seek life without parole would have the effect of amending the statute. In our view, actual notice ... is insufficient unless and until the General Assembly decides otherwise and amends the statute itself.” Johnson, 347 S.C. at 70, 552 S.E.2d at 340. We agree with the reasoning of the Court of Appeals of South Carolina.
the purpose served by the notice requirement—to allow the defendant the opportunity to marshal his defenses in aid of showing why imposition of the death penalty would be inappropriate in his case—is satisfied by the notice given in this case. The absence of language in the notice to the
effect that two sentences of death would be sought did not render the notice inadequate.
Grandison, 341 Md. at 222, 670 A.2d at 420.
In the present case, the State relies on that language to argue that defense counsel‘s actual notice of the State‘s intent to seek life without parole satisfies the purpose of the notice statute. We disagree. Grandison is distinguishable from the instant case. There is no question that Grandison received timely written notice. Our decision in that case did not discuss whether Grandison could have been sentenced to death if he had actual notice but not written notice of the State‘s intent to seek death. Our discussion in Grandison of the purpose of requiring notice was not in conflict with our reading of the language of the particular statute at issue in that case. The plain language of the statute in Grandison did not require the State to provide two separate notices, and we could not say, considering the purpose of the statute, that two separate notices were required. By contrast, to fall back on the general purpose of the notice statute in the instant case and hold that actual notice will suffice, ignores the plain language of the statute we must construe.7 Section 2-203 describes what constitutes fair notice—written notice at least 30 days before trial. Simply stated, we are not permitted to ignore the language of the statute.8 See Jones, 336 Md. at
In view of our holding that the notice provided in this case did not comply with the requirements of
In a case involving a sentence as serious
The Confession
Mr. Gorge argues that the trial court erred by finding that his statements to the police were voluntarily given. Our response to this contention will not detain us long. A review of the record of the suppression hearing supports the trial court‘s decision. Detective Wilhelm testified that when he and Detective Meyer interviewed Mr. Gorge, he appeared to understand who they were and agreed to discuss what happened in Baltimore. Detective Wilhelm also described Mr. Gorge‘s demeanor as calm, alert, quiet, and subdued. Mr. Gorge reviewed and signed a written statement containing the substance of the interview with the detectives, indicating that he understood its contents and that he gave the statement voluntarily. As previously noted, defense counsel admitted Mr. Gorge‘s medical records but did not call any witnesses. The defense now argues that “[i]t is clear that inasmuch as petitioner was in severe pain, subject to various unknown medications, and emotionally distraught at the time he was interviewed by the officers, his statement is subject to suppression as not having been freely or voluntarily made.” Petitioner‘s Brief at 24.
As recently stated in Knight v. State, 381 Md. 517, 850 A.2d 1179 (2004),
Only voluntary confessions are admissible as evidence under Maryland law. A confession is voluntary if it is “freely and
voluntarily made” and the defendant making the confession “knew and understood what he [or she] was saying” at the time he or she said it. Hoey v. State, 311 Md. 473, 480-81, 536 A.2d 622, 625-26 (1988). In order to be deemed voluntary, a confession must satisfy the mandates of the U.S. Constitution, the Maryland Constitution and Declaration of Rights, the United States Supreme Court‘s decision in Miranda, and Maryland non-constitutional law. See Ball v. State, 347 Md. 156, 173-74, 699 A.2d 1170, 1178 (1997). Knight, 381 Md. at 531-32, 850 A.2d at 1187 (footnote omitted). The burden is on the State to prove that the confession was “freely and voluntarily made.” Winder, 362 Md. at 306, 765 A.2d at 113. As described in Hillard v. State, 286 Md. 145, 150, 406 A.2d 415, 418 (1979), a defendant‘s confession may not be used unless it is “shown to be free of any coercive barnacles that may have attached by improper means to prevent the expression from being voluntary.”
We have said that we must look at the totality of the circumstances in order to decide the voluntariness of a statement. As noted in Knight, we “‘look to all elements of the interrogation, including the manner in which it was conducted, the number of officers present, and the age, education, and experience of the defendant.‘” Knight, 381 Md. at 533, 850 A.2d at 1188 (quoting Williams v. State, 375 Md. 404, 429, 825 A.2d 1078, 1092-93 (2003)). As previously noted, our review of the circuit court‘s denial of Appellant‘s motion to suppress is “limited to the record of the suppression hearing.” Winder, 362 Md. at 311, 765 A.2d at 116.
Based upon our review of the record of the suppression hearing in the instant case and consideration of the totality of the circumstances, we do not think the trial court erred by finding Mr. Gorge‘s statement voluntary. Although the interrogation took place in Mr. Gorge‘s hospital room, while he was recovering from serious injuries, the detective‘s uncontroverted testimony regarding his discussion with Mr. Gorge supports a finding of voluntariness. Mr. Gorge‘s answers to Detective Wilhelm were lucid and accurate. Mr. Gorge signed a written statement, indicating that he understood what he
CONCLUSION
In summary, we hold that
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED IN PART AND THE CASE REMANDED TO THAT COURT WITH DIRECTIONS TO VACATE THE SENTENCE OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AND TO REMAND THE CASE TO THE CIRCUIT COURT FOR BALTIMORE COUNTY FOR A NEW SENTENCING CONSISTENT WITH THE OPINION OF THIS COURT. BALTIMORE COUNTY TO PAY COSTS IN THIS COURT AND THE COURT OF SPECIAL APPEALS.
CATHELL and HARRELL, JJ., Dissent.
Although I agree with the Majority opinion‘s analysis and conclusion regarding Gorge‘s confession (Maj. op. at 621-22, 873 A.2d at 1183–84), I depart from its discussion and holding that his sentencing was flawed. Accordingly, I would affirm the judgments of the Court of Special Appeals and the Circuit Court for Baltimore County.
Although it is tempting to make a stand, on this record, based on the undisputed timely actual notice given Gorge, I shall not. Nonetheless, if there is a better case illuminating the wisdom of why it is frequently said to be a bad idea to elevate form over substance, I have not seen it. There is no doubt that the pertinent statute requires the State to give written notice, at least 30 days prior to trial, of its intent to seek the penalty of life without the possibility of parole.
For example, the trial judge commented at Gorge‘s sentencing on 3 March 2003, when Gorge‘s attorney first posed a question regarding the State‘s ability to demonstrate manifestly its literal compliance with
My notes reflect when we first came in for a pretrial conference,2 the State disclosed to both the Defense and the Court that the State would not be seeking the death penalty because of the fact that the family of the victim did not want this, but the State would be seeking life without parole.
Indeed, Gorge‘s trial counsel, in the course of the 3 March sentencing proceeding, conceded the accuracy of the trial judge‘s recollection of what occurred at the pretrial conference, saying
Your Honor, I will be quite candid with the Court, ... [the prosecutors] ... had pretty much early on after I got the case3 indicated they were going to be seeking a sentence of life without parole.
On other occasions over the course of that proceeding, defense counsel repeated her acknowledgment of receipt of actual notice:
Your Honor, the Defense had been put on notice some time ago prior to the trial that the State was going to be seeking this sentence at the conclusion of the trial.
*
*
*
As a plain reading of
[T]he Defense certainly had oral notice thirty days prior to even the June trial date4 that we originally had that the State was going to seek the sentence that it was seeking. Again, Your Honor, we will submit that we had oral notice.
Of greater significance to me in reviewing the trial judge‘s resolution of whether the State complied literally with
Somewhere in the back of my mind I thought I remember reading this notice, but unfortunately—not unfortunately. Funny enough neither myself nor the State could find a copy.
*
*
*
From what I remember, I thought the State did hand up a paper or certainly made it clear on the record they were seeking this sentence.
*
*
*
As I said, the State has, again, filed notice in accordance with the statute. I will submit to the Court.... The State has filed written notice in written form today.6 (Emphasis added).
In addition, although of possibly less weight, was the prosecutor‘s representation that:
One of the reasons I know that we have previously filed a written notice, although I cannot put my hand on it, when I do a case like this, I make up separate manilla folders. I basically break down—I have a couple of copies. A discovery of the case file which would be what we would send to Ms. Robinson [Gorge‘s trial counsel]. I have a copy that I keep just for my records. The third copy which is my working copy of the file. When I make up these manilla folders, I keep things piece by piece. I have a manilla folder in this case entitled “Life Without Parole Notice.” It was empty. I believe it was empty because we had sent a copy to Ms. Robinson. At the conclusion of the case I had provided a copy to the Court. It would have the original date on it that we sent it.7
My review of the trial judge‘s oral ruling on the defense‘s “question”8 was expansive enough to embrace an implicit finding that a timely written notice, despite its incorporeal status in this record, was given in fact. Although he alluded briefly to the existence of actual notice well in excess of 30 days before trial, he also relied on the circumstantial indicia of a timely written notice in declaring
I am going to proceed in the case on the basis that there was notice given to the Defense.
Specifically, he referred to the 16 October 2002 plea offer letter, which contained the following allusion: “At disposition, the State will argue for Life Without Parole, pursuant to the Notice that has been filed.” As mentioned supra, although not singled-out by the judge in his oral ruling, the record of
Judge CATHELL authorizes me to state that he joins this dissent.
873 A.2d 1187
ATTORNEY GRIEVANCE COMMISSION OF MARYLAND, Petitioner, v. Fredric David LEFFLER, Respondent.
Misc. Docket AG No. 94, Sept. Term, 2004.
Court of Appeals of Maryland.
May 10, 2005.
ORDER
Upon consideration of the Joint Petition for Disbarment by Consent filed herein pursuant to Maryland Rule 16-772, it is this 10th day of May, 2005,
Notes
In the instant case, there was no copy of a purported timely notice in the court‘s file. The Assistant State‘s Attorney noted that his file entitled “Life Without Parole Notice” was empty and that he believed it was empty because “we had sent a copy to Ms. Robinson [trial defense counsel].” He also stated that he was going to search his discovery file to try and locate the notice and supplement the record if he found it. As far as we are aware, the record has never been supplemented with any timely written notice. 5. The circumstantial evidence refers to a written notice earlier than the untimely one delivered to defense counsel on or about 16 October 2002 contained in a plea offer letter. This form of written notice was received by Gorge 28 calendar days prior to the commencement of trial on 12 November 2002.