Harris v. StateHarris v. State
Lead Opinion
On February 24, 1982, Jackie Kevin Harris entered pleas of guilty in the Circuit Court for Baltimore County to murder in the first degree, two counts of armed robbery, and a handgun violation. The court accepted the pleas and adjudged Harris guilty on all counts. Harris waived his right to be sentenced by a jury, and on April 5, 1982, the trial judge imposed the death penalty for the first degree murder, and consecutive sentences of imprisonment totaling 20 years for the remaining offenses.
On Harris’s initial appeal, we affirmed the convictions, but vacated the death sentence on the ground that Harris’s waiver of a jury at his sentencing had not been made knowingly and voluntarily. See Harris v. State, 295 Md.
On remand, the court conducted a plenary hearing and concluded that Harris had received effective assistance of counsel, as guaranteed by the Sixth and Fourteenth Amendments to the Constitution of the United States.
The parties have submitted supplemental briefs, as we directed in Harris III. We have considered the issues raised by Harris challenging the legality of the death sen
I.
Before selection of the sentencing jury, defense counsel informed the trial judge that Harris had chosen not to testify but wanted to “present allocution as ... in any normal sentencing proceeding____ It is my belief that that is his right____” The court reserved its ruling on the issue until later in the proceeding.
Following jury selection, the parties again addressed the issue of allocution. Defense counsel reiterated that Harris desired to allocute before the jury prior to closing arguments. The State argued that, if Harris elected to allocute, defense counsel would be precluded by § 413(c)(2) from presenting a summation or closing argument because the statute provided in the disjunctive that “[t]he State and the defendant or his counsel may present argument for or against the sentence of death.” (Emphasis added.) The State asserted that allocution was nothing more than a form of argument within the contemplation of this statute.
In response, the defense counsel stated that “[m]y argument to the jury on the facts does not constitute allocution by the Defendant. He does not wish to take the stand. He does not wish to testify. He wishes to make a plea for his life to the jury____
“It’s not going to be a second jury argument, Your Honor. It is going to actually be the equivalent of what any defendant says after his counsel has put on evidence and made the argument to stand up and say to the judge, I’m sorry, ... so the judge can get an impression of his demeanor even though he chooses not to testify under oath for whatever reason, which is his option.
*350 “That is what we wish to do. As I pointed out, it’s absolutely required under the law----
******
"... My client is not articulate enough to stand up there for an hour [or] two and plead for his life and integrate the facts. He shouldn’t be required to do that, but at the same time he wants the opportunity to simply say, I’m sorry. Don’t kill me.”
Defense counsel then conferred with Harris, and indicated to the court that the following proffer contained the substance of what Harris would say during allocution before the jury:
“That it is difficult for him to stand in front of them. He’s not good with words or to tell them what he means, but that he’s sorry for his involvement in the offense, particularly so for the fact that the man died and for the grief that his family has suffered.
“He wishes there was some way that it could be otherwise. That he would ask them to consider ... sparing his life and allowing him to live and receive a life sentence.”
After hearing further argument by both parties, the court ruled as follows:
“I believe that ... Article 27 Section 413 gives to the Defendant the right to address the jury but further gives to the Defendant the right to give up that right to have Counsel address the jury. The wording of the statute says ... the Defendant or Counsel. The decision is the Defendant’s whether he shall address the jury or whether [Counsel] shall address the jury, and that is for the two of you to decide, and at the appropriate time you can make that election, but it will not be that both of you shall address the jury.”
After both parties’ submission of evidence, but before closing arguments, defense counsel again addressed the court:
*351 “[A]t this point ..., I would resubmit to the Court that my client wishes to allocute. He does not wish to waive the right to have me argue to the jury. He in fact does, and faced with that Hobson’s choice, if you will, of either or, we’ll submit to the Court’s ruling and have me argue.
“We do maintain as we have maintained consistently that he has an absolute right to allocute in addition to his attorney. We have already put on the record the extent of allocution.
“... [W]e would ask Your Honor to reconsider at this point and allow my client to allocute.
“THE COURT: Just like any other sentencing proceeding, the Defendant has a right of allocution. The Defendant may elect to exercise that right and present himself through himself to the sentencing authority, the jury in this case or a judge in another case.
“This statute particularly and specifically grants the Defendant that right, but it further states in the statute ... that he can delegate that [right] to his Counsel. This Court is not depriving Mr. Harris of his right to address the jury. He may do so. If he elects to do so, [Counsel] may not argue, also.
“He may however waive his right to allocute personally and appoint [Counsel] to do that. He has made that decision.”
(A)
Section 413(c)(2)
In Booth v. State,
As indicated earlier, § 413(c)(2) states that “[t]he State and the defendant or his counsel may present argument for or against the sentence of death.” (Emphasis added.) Since allocution is neither synonymous with nor encompassed by the term “argument,” the circuit court erred in concluding that this statute prevented Harris from both allocuting and having his counsel present a closing argument to the jury. The issue before us, therefore, is whether Harris had a right to allocute that was improperly denied at the sentencing proceeding.
(B)
The Right of Allocution under the Maryland Rules
Since 1962, the right of allocution in Maryland has been governed primarily by the rules of this Court. Md.Rule 761, adopted on January 1, 1962, applied in both capital and noncapital cases and provided in subsection (a) that “[bjefore imposing sentence the court shall afford an accused or his counsel an opportunity to make a statement and to present information in mitigation of punishment.” In 1977, this rule was rescinded and the provision governing allocution was modified and incorporated into new Md.Rule 772.
Between January 1, 1979, and July 1, 1984, the Maryland Rules did not afford defendants in capital cases a right of allocution. It was during this périod that Harris was sentenced to death. The right of allocution in capital cases was not again addressed in the Maryland Rules until the adoption of current Rule 4-343 as part of the comprehensive revision of the rules in 1984.
That the Maryland Rules were silent between 1979 and 1984 as to the right of allocution in capital cases did not, of course, extinguish the right. The rescission of a rule of court, like the repeal of a statute, revives the preexisting common law, absent a clear contrary purpose. See Lutz v. State,
The Common Law Right of Allocution
As originally recognized by the early common law, the right of allocution provided a defendant with a formal opportunity to disclose to the court, before it pronounced sentence, certain strictly defined legal impediments to sentencing: that the defendant had benefit of clergy, had obtained a pardon, or was insane, pregnant, or not the person named in the indictment. Because sentences for felonies were then rigidly mandated by law, and the trial judge, therefore, had no discretion in imposing sentence once the determination of guilt was made, allocutory pleas for mercy would have been unavailing and were not allowed. 4 W. Blackstone, Commentaries on the Laws of England 368-71 (1769); Barrett, Allocution, 9 Mo.L.Rev. 115, 120-24 (1944); Note, Procedural Due Process at Judicial Sentencing for Felony, 81 Harv.L.Rev. 821, 821-22, 832-33 (1968).
At the time the right of allocution originated, a criminal defendant had no right to counsel and was incompetent to testify on his own behalf; thus, allocution was the defendant’s only opportunity to address the court. Allocution was therefore viewed as an essential procedural right, and a court’s failure to ask a defendant “Do you know of any reason why judgment should not be pronounced upon you?” was held to be reversible error, at least in capital cases. Green v. United States,
The right of allocution existed in 1776 in essentially the form above outlined: it was a formal, narrowly defined right viewed as an essential part of the criminal sentencing procedure. This, therefore, was the nature of the common
By the mid-nineteenth century, however, the right of allocution had undergone significant changes. As sentencing statutes prescribing ranges of penalties rather than fixed penalties became more common, judicial discretion assumed a significant role in the sentencing process. Presumably in response to the trial courts’ newly vested discretion, the scope of allocution was broadened, permitting a criminal defendant to inform the court of any mitigating factors relevant to sentencing, or simply to plead for leniency. See 1 J. Chitty, Criminal Law 571 (1819); Cohen, supra, at 9; Note, supra, at 822-23; Note, The Admissibility of Character Evidence in Determining Sentence, 9 U.Chi.L.Rev. 715, 715-16 (1942).
On the other hand, because the defendant’s rights to obtain counsel and to testify at trial adequately protected most of the interests previously safeguarded only by allocution, the importance of allocution declined. Although many states continued to view allocution as an essential part of the sentencing process, and some passed statutes to this effect, a substantial number of jurisdictions came to regard allocution as an obsolete and unnecessary ceremony, even in capital cases. Other states concluded that, while allocution continued to serve a useful function, its omission was not reversible error and did not necessarily require resentencing. Annot., supra, at 1295-1301; Barrett, supra, at 126-43, 232-53.
We first addressed the nature of the right of allocution in Dutton v. State,
Dutton strongly endorsed the practice, and recommended that trial courts provide an opportunity for allocution in all cases in which sentences of death or imprisonment in the penitentiary could be imposed. The Court explained that allocution, in its modern form, could provide the sentencing court with information that might well influence the exercise of its sentencing discretion. The Court held, nevertheless, that
“it is not reversible error, even in capital cases, not to ask the prisoner if he has any reason to give why sentence should not be passed, unless it is apparent that the prisoner was or may have been injured by the omission.” Id. at 383,91 A. 417 .
Where such actual or potential injury was shown, the Court indicated that the appropriate remedy would be a new sentencing proceeding. Id. at 382, 384,
Dutton and its progeny thus embody the common law right of allocution as it existed when we adopted Md.Rule
Our cases applying the Maryland rules governing allocution have altered the principles of Dutton to some extent. We have previously indicated that, because the right of allocution is not a fundamental right secured by either the federal or state constitution, it is waived if not asserted by the defendant before sentencing. See Logan v. State,
None of our cases have addressed precisely the situation presented in the case now before us, in which a defendant requesting an opportunity to allocute was affirmatively denied such an opportunity. Dutton and its progeny involved a trial court’s mere failure to advise a defendant regarding the exercise of a common law procedural right; the trial court’s action in the present case, in denying a defendant an opportunity to exercise that right, constitutes a serious breach of procedural fairness. In determining the appropriate remedy, we must consider the function and significance of the right of allocution in the current capital sentencing process.
As we observed in Kent v. State,
We conclude that, under the common law applicable to capital sentencing proceedings at the time Harris was sentenced, a defendant who timely asserts his right to alloeute, and provides an acceptable proffer, must be afforded a fair opportunity to exercise this right. If the right so asserted is denied by the court, as here, the sentence must be vacated and a new sentencing proceeding conducted.
In so holding, we do not suggest that the exercise of this right may be unlimited as to either duration or content. Although a sentencing court may not deny a defendant who elects to alloeute a fair opportunity to exercise his right, the court may in its discretion curtail allocution that is irrelevant or unreasonably protracted.
II.
An additional issue raised in this appeal concerns the admissibility at Harris’s capital sentencing proceeding of an
During the guilt-determining stage of the trial, the State introduced an Agreed Statement of Facts in support of Harris’s guilty pleas.
At the second sentencing proceeding, the court permitted the State to introduce the statement over Harris’s objection. Harris raises two challenges to the admissibility of the statement at the sentencing stage of the trial. First, he maintains that the introduction of this statement for consideration by the sentencing jury violated his right, secured by the Sixth and Fourteenth Amendments, to confront and cross-examine witnesses against him. Harris also asserts that the statement was inadmissible under § 413(c)(1), which governs the admissibility of evidence in a capital sentencing proceeding.
The Right of Confrontation
The Sixth Amendment to the federal constitution provides, in part, that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him____” This right has been extended to state criminal prosecutions through the Fourteenth Amendment. See Pointer v. Texas,
The Supreme Court of the United States has, on several occasions, explained the policies underlying the Confrontation Clause. See, e.g., Delaware v. Fensterer, — U.S. -,---,
“it is this literal right to ‘confront’ the witness at the time of trial that forms the core of the values furthered by the Confrontation Clause:
‘The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases,*362 being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.’ Mattox v. United States,156 U.S. 237 , 242-243 [15 S.Ct. 337 , 339, 340,39 L.Ed. 409 ] (1895).”399 U.S. at 157-58 ,90 S.Ct. at 1934-35 .
Similarly, in Dutton v. Evans, supra, the Court stated that “the mission of the Confrontation Clause is to advance a practical concern for the accuracy of the truth-determining process in criminal trials by assuring that ‘the trier of fact [has] a satisfactory basis for evaluating the truth of the prior statement.’ ”
Viewed against this background, Harris’s argument is clearly without merit: the policies underlying the Confrontation Clause are not implicated where the testimony at issue is the judicial admission of the defendant himself. Furthermore, even under a traditional Confrontation Clause analysis, the introduction of the statement during the sentencing proceeding did not violate Harris’s right of confrontation. In Ohio v. Roberts, supra, the Supreme Court explained that
“[t]he Confrontation Clause operates in two separate ways to restrict the range of admissible hearsay. First, in conformance with the Framers’ preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case (including cases where prior cross-examination has occurred), the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant____
“The second aspect operates once a witness is shown to be unavailable. Reflecting its underlying purpose to aug*363 ment accuracy in the factfinding process by ensuring the defendant an effective means to test adverse evidence, the Clause countenances only hearsay marked with such trustworthiness that ‘there is no material departure from the reason of the general rule.’ ”448 U.S. at 65 ,100 S.Ct. at 2539 (citations omitted).
Had Harris wished to take the stand during the sentencing proceeding to explain or supplement the facts recited in the statement, he was free to do so. However, because the State could not compel Harris to testify during the proceeding, see Estelle v. Smith,
An argument similar to that now advanced by Harris was summarily rejected by the Supreme Court in Williams v. Oklahoma,
Before the Supreme Court, the petitioner argued that by permitting the prosecutor to introduce the unsworn statement reciting the details of the crime the trial court had denied him his right of confrontation and cross-examination.
“once the guilt of the accused has been properly established, the sentencing judge, in determining the kind and extent of punishment to be imposed, is not restricted to evidence derived from the examination and cross-examination of witnesses in open court but may, consistently with the Due Process Clause of the Fourteenth Amendment, consider responsible unsworn or ‘out-of-court’ information relative to the circumstances of the crime and to the convicted person’s life and characteristics.”358 U.S. at 584 ,79 S.Ct. at 426 .
The Court concluded that “[tjhese considerations make it clear that the State’s Attorney’s statement of the details of the crime and of petitioner’s criminal record—all admitted by petitioner to be true—did not deprive petitioner of fundamental fairness or of any right of confrontation or cross-examination.” Id.; cf. Gregg v. Georgia,
Other courts that have addressed the issue have uniformly held that the introduction into evidence of a defendant’s admission does not violate the Confrontation Clause. See, e.g., United States v. Lemonakis,
(B)
Section 413(c)(1)
Harris also argues that the Agreed Statement of Facts was inadmissible under § 413(c)(1), the statutory provision governing the admissibility of evidence in a capital sentencing proceeding. This statute provides that “[t]he following type of evidence is admissible in this proceeding:
(i) Evidence relating to any mitigating circumstance listed in subsection (g);
(ii) Evidence relating to any aggravating circumstance listed in subsection (d) of which the State had notified the defendant pursuant to § 412(b);
(iii) Evidence of any prior criminal convictions, pleas of guilty or nolo contendere, or the absence of such prior convictions or pleas, to the same extent admissible in other sentencing procedures;
(iv) Any presentence investigation report. However, any recommendation as to sentence contained in the report is not admissible; and
(v) Any other evidence that the court deems of probative value and relevant to sentence, provided the defendant is accorded a fair opportunity to rebut any statements.”
In applying § 413(c)(1) in Johnson v. State,
In Thomas, supra, we said that “[decisions on the relevance of evidence rest in the sound discretion of the trial court and will not be reversed absent a showing that such discretion was clearly abused.”
Our opinion in Tichnell v. State,
On his second appeal to this Court, Tichnell argued that the recorded trial testimony was inadmissible under § 413(c) because its use denied him an opportunity to cross-examine the witnesses before the new jury. Tichnell’s strategy during the sentencing proceeding was to negate or allay the testimony of certain of the State’s witnesses regarding the circumstances of the killing. We emphasized that the opportunity to observe Tichnell’s cross-examination of the State’s witnesses, and thereby perceive the witnesses’ demeanor and otherwise assess their credibility, was essential to the jury’s determination of the existence and weight of aggravating and mitigating circumstances. We therefore held that,
“[ajbsent agreement of the parties, or a showing of unavailability of the witnesses to testify at the separate sentencing hearing, ... § 413(c) does not permit, over timely objection, the admission in evidence before a new sentencing jury of the prior recorded trial testimony to prove the existence or absence of aggravating or mitigating circumstances.”290 Md. at 63 .
This holding is clearly inapplicable to the present case: the Agreed Statement of Facts is not analogous to recorded trial testimony. As Tichnell illustrated, the difficulties attendant upon the use of a trial transcript at sentencing arise from the sentencing body’s need to assess witnesses’ credibility. Such difficulties do not arise where, as here, the parties have agreed to the truth of the facts contained in the statement. We conclude that nothing in § 413(c) precludes the sentencing body from considering an Agreed Statement of Facts originally introduced in support of a guilty plea.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY IMPOSING A DEATH SENTENCE YA
Notes
. Md.Rule 731 was rescinded on July 1, 1984. The current provision governing withdrawal of guilty pleas prior, to sentencing is Rule 4-242(f), which is substantively identical to former Md. Rule 731 f 1.
. The Sixth Amendment provides in part that, “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” This right has been extended to state criminal prosecutions through its incorporation into the Due Process Clause of the Fourteenth Amendment. See, e.g., Gideon v. Wainwright,
. Unless otherwise indicated, all statutory provisions cited in this opinion are within Article 27.
. Md.Rule 761 was rescinded and Md.Rule 772 adopted, effective July 1, 1977, as part of a comprehensive revision of the rules of criminal procedure.
. Md.Rule 772A was adopted and Md.Rule 772 was amended effective January 1, 1979.
. Rule 4-343 became effective on July 1, 1984.
. Article 5 provides in part:
"That the Inhabitants of Maryland are entitled to the Common Law of England ..., according to the course of that Law, and to the benefit of such of the English statutes as existed on the Fourth day of July, seventeen hundred and seventy-six; and which, by experience, have been found applicable to their local and other circumstances, and have been introduced, used and practiced by the Courts of Law or Equity____”
. Paragraph (8) was added to § 413(g) by chapter 521 of the Acts of 1979, and became effective on July 1, 1979.
. Before accepting a guilty plea, a trial court must determine, inter alia, that the plea is supported by a strong factual foundation. Md. Rule 731c (superseded July 1, 1984, without substantive change, by Rule 4-242(c) ); State v. Brazle,
Concurrence Opinion
concurring.
I concur with the Court in its holding that Harris’s sentence must be vacated because he was denied his common law right of allocution. However, I write separately to reaffirm my dissenting opinion in Harris v. State,
Today, the Court holds that this same Agreed Statement of Facts is admissible before the sentencing body to determine whether Harris lives or dies. Thus, the consequences of defense counsel’s mistake as to the Agreed Statement of Facts become all the more obvious.