Case Information
*1 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2612 September Term, 2012 OTTUS SAVOY v.
STATE OF MARYLAND Zarnoch,
Graeff,
Raker, Irma S.
(Retired, specially assigned), JJ.* Opinion by Raker, J.
Filed: July 31, 2014 *Reed, Michael W., J., did not participate in the Court’s decision to report this opinion pursuant to Md. Rule 8-605.1.
Ottus Savoy, appellant, was convicted in the Circuit Court for Baltimore City of second degree murder and use of a handgun in the commission of a crime of violence. Before this Court he presents the following questions for our review:
“1. Did the trial court err in admitting Appellant’s statements to the police?
2. Did Appellant knowingly and intelligently [sic] waive the right to testify?
3. Did the trial court err in admitting into evidence photographic arrays which included a photograph of Appellant?”
We shall affirm.
I.
Appellant was indicted by the Grand Jury for Baltimore City with first degree murder, use of a handgun in the commission of a crime of violence, and wearing, carrying, and transporting a handgun. He proceeded to trial before a jury in the Circuit Court for [1]
Baltimore City.
During the evening of August 1, 2011, at approximately 11:15 p.m., Sean Ames was [2] shot and killed in Baltimore City outside of the residence of Troy Harkless and his then- girlfriend Amber Buschman. Appellant had been staying at the residence temporarily. According to the two eyewitnesses at the scene, Janice Jay and Ms. Buschman, appellant *3 emerged from a taxi and demanded to know why Mr. Ames was on the steps. When Mr. Ames replied that he was selling DVDs and awaiting Mr. Harkless’ return, appellant ran into the house, retrieved a handgun, and returned outside. Appellant then shot Mr. Ames on the steps, and when Mr. Ames attempted to flee, appellant chased him up the street and shot him several more times, killing him. The police recovered the gun from the roof of a garage adjoining Mr. Harkless’ residence.
Although the defense called no witnesses in the case, the defense’s theory of the case was that Mr. Harkless, not appellant, killed Mr. Ames. Mr. Harkless testified for the State that he had arranged for Mr. Ames to sell him DVDs outside his residence. Mr. Harkless then walked to a neighborhood Seven-Eleven. Upon returning, he learned that Mr. Ames had been killed. Mr. Harkless found the murder weapon, which was his own gun wrapped in a towel, and tossed it from the window onto a nearby garage roof out of fear that he would be linked to the homicide. Detectives testified that Mr. Harkless provided them with a receipt from the Seven-Eleven and that the surveillance video maintained by the store depicted Mr. Harkless before the murder occurred. It was unclear whether Mr. Harkless had sufficient time to travel from the store to his home to perpetrate the killing.
On August 25, 2011, the police arrested appellant and brought him to the homicide unit. The police interviewed him at two different times. Detective Moynihan testified that when appellant was questioned after his arrest, he wrote on a piece of paper, “If you all can get me twenty to twenty-five years with a lawyer I will take the plea.” When told by a *4 detective that they would need more information to take to the State’s Attorney, appellant replied, “The blank flinched, act[ed] like he was reaching. I will tell you all how the whole [3]
situation happened in front of the State’s attorney.”
The court admitted, over defense objection, photo arrays in which Ms. Jay and Ms. Buschman had identified appellant as the perpetrator, and Mr. Harkless had identified appellant as a person he knew.
After the close of the State’s case, the following colloquy took place between appellant and defense counsel regarding appellant’s right to testify:
“[DEFENSE COUNSEL]: At this point in time the State has rested and the defense would choose whether or not it wants to put a case on or not. I do not believe we have any witnesses that we want to put on. So the question is do you want to testify or not, which you do not have to answer but I have to advise you that you have a right to testify. You have a right to remain silent. If you choose to remain silent I have asked this court already to give an instruction to this jury they cannot even consider the fact you chose to remain silent as evidence against you. They can’t even discuss or talk about it and that will be the instruction that the Court will read to the jury at the end of instructions. If you choose to testify, you are giving up that Fifth Amendment right, all right, and you have a right to do that if you want but if you get up on the stand you can’t just say one thing. If you get up on the stand and want to testify, then you’re giving up that right and the State can ask you any questions about this case that they want to.
Also it’s my understanding that you have a prior conviction with first degree assault. It’s my understanding that this is an impeachable offense and if you get on the stand and testify, the State can ask you questions about that offense if they so desire *5 to try to show that you are somebody that should not be believed. You do not have to testify. It’s completely your choice, do you understand your choice?
THE DEFENDANT: Yes.
[DEFENSE COUNSEL]: Do you understand your right to testify and your right not to testify?
THE DEFENDANT: Yes.
[DEFENSE COUNSEL]: And it is my understanding that you would like to hold onto that and make that election tomorrow after you had enough time to digest this and figure this out; is that correct?
THE DEFENDANT: Yes.” At the next day’s proceedings, trial counsel stated as follows: “Your Honor, I’ve spoken to my client, Mr. Savoy, and Mr. Savoy, at this time, would like to invoke his Fifth Amendment Right and not testify.” Although the defense called no witnesses in the case, the defense’s argument was that Mr. Harkless, not appellant, killed Mr. Ames.
The jury convicted appellant of second-degree murder and use of a handgun in the commission of a crime of violence. The court sentenced appellant to a term of incarceration of thirty years for second-degree murder and a consecutive term of incarceration of twenty years for the use of a handgun.
This timely appeal followed.
II.
We turn first to appellant’s request that we review for plain error the denial of his
motion to suppress and the admission of his pre-trial statements to the police. Appellant
argues that the trial court committed plain error in allowing the admission of the
incriminating statements he made to the police because they were statements made in the
context of settlement negotiations and appellant offered to plead guilty in return for a
specified sentence. He argues plain error in the admissibility of his statements also because
the detectives violated his rights under
Miranda v. Arizona
,
The State maintains that appellant’s arguments regarding the suppression hearing were waived and precluded from plain error review. Particularly interesting is the State’s argument that plain error review is not available when a defendant affirmatively waives issues subject to Rule 4-252, i.e. , mandatory motions to suppress. The State argues in the alternative that plain error review is unwarranted because appellant did not identify any clear and obvious error by the trial court. First, the State argues that Rule 5-410 is inapplicable to the admissibility of the statements at issue because that Rule applies only to plea discussions with an attorney for the prosecuting authority and it has no application to statements a defendant may have made to law enforcement alone. Second, as to the merits of the Miranda issue, the State argues that the detectives scrupulously honored appellant’s initial invocation of the right to remain silent.
When reviewing the denial of a motion to suppress, we review the record of the
suppression hearing, not the record of the trial.
Byndloss v. State
,
Appellant was arrested on August 25, 2011, and the police interviewed him that day. Detective Moynihan conducted the interview, while a fellow detective was present as a witness. Detective Moynihan read appellant his Miranda warnings, see Miranda , 384 U.S. at 436, and appellant waived both his Miranda rights and his right to prompt presentment. During this phase of the interview, appellant mentioned that some members of a rock and roll band might be able to provide an alibi for him. Appellant then stated, “I’m finished talking.” Detective Moynihan terminated the interview, and checked out the asserted alibi. The members of the rock and roll band provided no exculpatory information.
After two-and-one-half hours had passed, Detective Moynihan questioned appellant again, accompanied by the same detective. Detective Moynihan restated the Miranda warnings, appellant waived his Miranda rights and he agreed to speak with the detectives. Appellant asked for a piece of paper and wrote: “If you all can get me 20 to 25 years with a lawyer, I will take the plea.” The other detective told appellant that they would need more information to take to the State’s Attorney. Appellant replied, “The [blank] flinched, act[ed] like he was reaching. I will tell you all how the whole situation happened, in front of the State’s attorney.”
At the suppression hearing, appellant argued only that the statements were involuntary because they were the product of coercive tactics. In particular, appellant argued that he denied initially his involvement in the murder, but that the detectives continued to press him and intimidate him until he made the statements. The court rejected this argument and denied the motion to suppress, explaining as follows:
“[W]hile there is a repetitive sort of stick-to-it-ness on the part of the detectives, they are not – they’re unrelenting in returning to the issue.
* * *
And [appellant’s] demeanor, as it’s presented through the audiotape is, at least in the Court’s opinion, is aggressive, assertive, not intimidated in any way, and combative.
* * *
[T]here’s certainly nothing here, to the Court, that rises to a constitutional level where he should – any of these statements – any of them – should be suppressed, at this point, on that legal point. So your motion is denied[.]”
Before this court, appellant abandons the argument he made in the trial court that the statements were involuntary because of police coercion and instead argues that the statements were inadmissible because they were part of plea negotiations and taken in violation of Miranda . He states in his brief as follows:
“Defense counsel argued that the statements were involuntary,
and the hearing judge rejected that argument. Appellant now
abandons that argument as nonviable, but respectfully requests
that this Court exercise its discretion to recognize plain error
*9
. . . upon two different theories: That the statements were
inadmissible under Rule 5-410 as statements made in the course
of plea negotiations, and that they were obtained through failure
to ‘scrupulously honor’ [
see Michigan v. Mosely
,
The State counters that appellant affirmatively waived these arguments by not presenting them at the suppression hearing, and therefore, plain error review is not available. The State argues alternatively that we should not review for plain error because appellant fails to identify any clear and obvious error by the court.
We shall consider appellant’s appeal arguments separately because, as we shall explain infra , the standard of review of his Rule 5-410 plea negotiation argument is different from that applicable to his Miranda violation argument. We address his Miranda violation argument first. There is no dispute in this case that appellant did not preserve the issue for our review, and waived the arguments he is now raising. See Rule 8-131 and Rule 4-252. It is well established that, absent good cause, Rule 4-252 prohibits a criminal defendant from [4]
*10
raising a theory of suppression on appeal that was not argued in the circuit court.
See Ray
v. State
,
Rule 8-131(a) provides 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.” Rule 4-252 provides that in the circuit court, a motion claiming an unlawfully
obtained admission, statement, or confession must be raised in conformity with the Rule,
shall be in writing unless directed otherwise by the court
and shall state the grounds upon
which it is made
. Rule 4-252(a)(4), (e). Unless a defendant shows good cause to excuse lack
of conformity with the rule,
it is waived.
Rule 4-252(a). This Rule applies to a failure to file
a motion to suppress as well as to a failure to include on the trial level the specific theory
raised on appeal.
Ray
,
(5) A request for joint or separate trial of defendants or offenses.
(b) Time for filing mandatory motions. A motion under section (a) of this Rule shall be filed within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court pursuant to Rule 4-213(c), except when discovery discloses the basis for a motion, the motion may be filed within five days after the discovery is furnished.” *11 requires suppression of all evidence that was the fruit of that unlawful arrest, waived the right to have that claim litigated on direct appeal.”). See also United States v. Lockett , 406 F.3d 207, 212 (3d Cir. 2005) (“[I]n the context of a motion to suppress, a defendant must have advanced substantially the same theories of suppression in the district court as he or she seeks to rely upon in this Court.”).
Before this Court, appellant offers no reason for the failure to raise the issue below, other than possibly appellate after-thought, which is insufficient. See Appellant’s Brief, n. 3. Because appellant did not raise his Miranda theory of suppression in the circuit court, [5]
we hold that pursuant to Rule 4-252, that argument is affirmatively waived.
Recognizing that under Rule 4-252 his Miranda argument is waived, appellant relies upon Maryland Rule 8-131 and plain error as his life raft. While Rule 8-131(a) provides 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,” it allows for the possibility of plain error review.
There is tension, however, between Rule 8-131, which allows for plain error review, and Rule 4-252, which provides that grounds for suppression not argued at the suppression hearing are affirmatively waived . The language of affirmative waiver suggests that plain error review is unavailable, and that an appellant seeking review must instead show good *12 cause for the failure to raise the issue in the circuit court. We hold that because appellant failed to raise his arguments at the hearing below, they are affirmatively waived and we will not review for plain error.
We considered this issue in
Carroll v. State
,
Writing for the panel in Carroll , Judge Kathryn Graeff pointed out that Rule 4-252, previously Rule 736, was patterned after Rule 12 of the Federal Rules of Criminal Procedure. Both rules are similar in providing that motions to suppress must be filed pre-trial and a failure to raise timely objections to the admissibility of an alleged illegal confession constitutes a waiver. Kohr v. State, 40 Md. App. 92, 98, 388 A.2d 1242, 1246 (1978). Where a Maryland rule is similar to or patterned on the federal rule, federal interpretation of the rule is persuasive. Because Rule 4-252 is patterned after the federal rule, we look to federal decisions addressing the effect of a failure to raise a suppression issue pursuant to Fed. R. Crim. P. 12.
Federal courts have rejected plain error review of a suppression issue that was not
raised below, holding that the failure to comply with Fed. R. Crim. P. 12 constitutes a waiver
of the issue on appeal.
See e.g.
,
United States v. Burke
,
In
Rose
, the United States Court of Appeals for the Third Circuit considered whether
a criminal defendant who failed to raise a reason to suppress evidence before the District
Court may raise the reason on appeal. The court held that absent good cause, he cannot and
that such a suppression issue is waived under Fed. R. Crim. P. 12, which trumps Rule
52(b)’s plain error standard in the context of motions to suppress.
Rose
,
The defendant advanced on appeal different arguments for suppression than he raised at the trial level. The court held that the “holding applies not only where the defendant failed to file a suppression motion at all in the district court, but also where he filed one but did not include the issues raised on appeal.” Id. at 182. The court stated as follows:
“[I]n the context of a motion to suppress, a defendant must have advanced substantially the same theories of suppression in the district court as he or she seeks to rely upon in this Court—in other words, a litigant cannot jump from theory to theory like a bee buzzing from flower to flower.”
*14 Id. at 179-80 (internal quotation marks omitted). The court surveyed other federal circuits and noted that although not universal, “the prevailing rule is that the failure to assert a particular ground [for suppression] operates as a waiver of the right to challenge the admissibility of the evidence on that ground.” Id. at 180, quoting 6 W AYNE R. L A F AVE , S EARCH AND S EIZURE : A T REATISE ON THE F OURTH A MENDMENT § 11.2(a) (4th ed. 2004) (modification in original). The court noted that even when the suppression hearing record is developed sufficiently for the appellate court to address plain error, it should decline to do so because of the language of the Federal Rule. Id. at 183 n.8.
In the case sub judice , the argument appellant raises before us on appeal is totally different from the arguments he raised below. He raised no Miranda issue below, and appellant has not shown any cause, no less good cause, for his failure to do so. Pursuant to Rule 4-252, his Miranda argument that his right to remain silent was not “scrupulously honored” was affirmatively waived, and plain error review is not available.
We turn to appellant’s other argument: that his statements were inadmissible at trial because they were made during plea negotiations within the purview of Rule 5-410, and therefore, nothing that transpired there was admissible in evidence. This argument was not affirmatively waived in the same sense as appellant’s Rule 4-252 argument is waived because appellant’s 5-410 argument is a trial evidentiary one, not a mandatory motion falling within the ambit of Rule 4-252. He was required, however, to raise the issue below as required by Rule 8-131. He failed to do so. He is not barred, however, from seeking plain error review.
Plain error review “is reserved for those errors that are compelling, extraordinary,
exceptional or fundamental to assure the defendant of a fair trial.”
Robinson v. State
, 410
Md. 91, 111,
We hold that although appellant’s argument is not procedurally barred from plain error review, it does not meet the threshold for plain error review—that is, it is not compelling, extraordinary, exceptional or fundamental to assure a fair trial. Moreover, it is not even error.
Appellant argues that both his statements to the detectives should have been excluded because they were made in the context of settlement negotiations. He cites Rule 5-410(a), which provides as follows:
“Except as otherwise provided in this Rule, evidence of the following is not admissible against the defendant who made the plea or was a participant in the plea discussions:
* * *
(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do *16 not result in a plea of guilty or nolo contendere or which result in a plea of guilty or nolo contendere which was not accepted or was later withdrawn and vacated.” (emphasis added).
Rule 5-410(a)(4) is inapplicable here. The statements at issue that appellant made were not to “an attorney for the prosecuting authority” but to two police detectives. Appellant’s conduct did not come within the ambit of the Rule. There was no error here.
III.
We turn to appellant’s constitutional argument that he did “not knowingly and intelligently waive the right to testify” and his contention that we must reverse because he [7]
waived his right to testify based on his trial counsel’s incorrect legal advice. His attorney told him, erroneously, that if he testified, the State could impeach him with his prior conviction for first-degree assault.
Appellant argues that because the trial court erred in failing to correct the erroneous
advice defense counsel provided him regarding his right to testify, his waiver of that right
was not knowing and voluntary. Defense counsel told appellant, in open court, that his prior
first-degree assault conviction was admissible for impeachment purposes. That advice was
incorrect. First-degree assault is not an impeachable conviction.
See Christian v. State
, 405
Md. 306, 320,
The State’s response is multi-fold. First and foremost, the State maintains that the error was created by appellant’s counsel and it is appellant’s burden to show that the error affected his election not to testify. Moreover, the State continues, even though trial counsel’s advice was facially incorrect advice, and hence the trial court should have taken corrective measures, reversal is not required where there is no evidence that the incorrect advice influenced appellant’s election. The State’s second argument is the “invited error doctrine.” The State maintains that a party cannot create error and then obtain a benefit, such as a mistrial or reversal, from that error. Finally, the State suggests that, absent evidence of detrimental reliance by appellant on the erroneous advice, claims such as this are best left to post-conviction proceedings.
It is clear that a criminal defendant has a constitutional right to testify in his or her
defense.
Rock v. Arkansas
,
The defendant’s right to testify is a personal right which may be waived only by the
defendant, and not by counsel.
Tilghman v. State
,
In Maryland, when a defendant is represented by counsel, there is no obligation on the
part of the court to advise the defendant of the right to testify.
Tilghman
,
The law is different as to self-represented defendants. In that case, in Maryland, the
trial court must advise the defendant of the constitutional right to testify and to remain silent
to enable the defendant to make an informed choice as to whether to testify or to waive the
right to do so.
Id.
at 554,
There are times, however, when a court has a duty to act, even when a defendant is
represented by counsel. In
Tilghman
, we examined several of those circumstances. We
*20
looked at
Hamilton v. State
,
In
Gilliam v. State
,
Gilliam argued on appeal that he may have been under the misapprehension that if he did not testify, the court could not find him guilty at all. He argued that the trial court had a duty to step in and correct trial counsel’s error, and that its failure to do so warranted reversal. The Court of Appeals disagreed. The Court explained that there was ample evidence on the record that Gilliam had been advised previously of his right to testify by counsel, and that the gratuitous colloquies at trial neither added nor detracted from the presumption that Gilliam had been informed adequately of his right. Id. at 655-56, 579 A.2d at 753. The Court rejected the notion that merely an ambiguous statement mandated reversal, and focused instead on whether the statement had any effect on the defendant’s decision as to whether to testify. The Court stated as follows:
“There is no reason to conclude, and we do not conclude, that as
the result of the ambiguous statement in the lengthy dialogue by
defense counsel Gilliam believed that if he elected not to testify
at trial he must be found not guilty, and that when that did not
occur, if he elected not to testify at his sentencing hearing, he
could not be sentenced to death.
Where there is no indication
that the defendant has a misperception of his right to remain
silent and the effect of exercising that right
, and where he
expressly indicates he has been fully advised of and understands
the right, as well as the effect of a waiver, then an ambiguous
statement made by defense counsel during an ‘on the record’
explanation does not result in reversible error if the trial court
fails to intervene and clarify counsel’s ambiguous statement.”
Id.
at 656,
Morales v. State,
325 Md. 330, 600 A.2d 851 (1992), involved an unrepresented
defendant. The trial court informed Morales of his right to testify. Morales indicated that
he would testify. The trial court asked him if he was sure, and told him that if he testified,
he could be impeached with any of his prior criminal convictions. Morales changed his mind
promptly and decided not to testify. The trial court’s advisements were erroneous, in that
most of Morales prior convictions were not impeachable offenses. The Court of Appeals
reversed, holding that because “Morales apparently changed his decision to testify based on
the trial court’s incorrect implication that all of his prior convictions could be used to
impeach him, [Morales’] decision to waive his constitutional right to testify and to exercise
his constitution right to remain silent was not knowingly and intelligently made.”
Id.
at 339,
Oken v. State
,
Thanos v. State
,
“The record gives no hint that counsel’s questionable advice
influenced Thanos’s decision not to testify
. Before the trial
began, Thanos stated on the record that he had no intention to
testify. He confirmed to the court at that point that he had
discussed with counsel his right to testify and his desire to
forego that right. Defense counsel subsquently indicated no
fewer than three times that the defense would present no
evidence. It was only at the conclusion of the State’s case that
defense counsel made the ambiguous statement about prior
convictions to Thanos in explaining his right to testify; but
nothing in Thanos’s responses suggests that counsel’s statement
caused him to change his mind about testifying
, for the record
clearly reflects that he had already decided not to do so.”
Id.
at 91-92,
The Tilghman court examined the above cases and affirmed. In Tilghman , the defendant was represented by counsel, and when advising his client of his right to testify, counsel stated that if “you have a prior conviction [the prosecutor] will ask you about those convictions[.]” We distinguished the facts in Tilghman from the prior cases on the matter, particularly Thanos , as follows:
“While this case does not present clear-cut evidence that
appellant’s election to remain silent resulted directly and solely
from the advice that he was given about impeachment with prior
convictions, as existed in
Morales
, we cannot say that
appellant’s decision to waive his right to testify was not
influenced by his attorney’s ‘on the record’ advice.
Moreover,
the record is devoid of evidence that demonstrates or from
which we might infer that appellant made his decision to testify
on a basis other than the advice that was imparted to him by
counsel, during the trial
. For that reason, and mindful that the
issue raised by appellant is of a constitutional dimension, we
turn to the question whether the trial court committed error that
resulted in appellant ineffectively waiving his right to testify.”
Tilghman
,
The bottom line in
Tilghman
is that, as “the Court of Appeals made plain in
Thanos
and
Gilliam
, the question whether a trial court committed error in not assuring that a
represented defendant was properly advised of his rights to testify and to remain silent is only
brought to bear
if the defendant waived one of those rights as a direct result of
being
misadvised by counsel.”
Id.
at 559,
“[I]f it is otherwise manifest to the court that the defendant is deciding whether to testify on the basis of erroneous legal advice that will render his decision unknowing and involuntary, the court must take action to assure that the defendant is correctly advised. Such a duty will arise upon counsel imparting advice to the defendant, in the presence of the court, that is intrinsically and facially incorrect, i.e. , is readily identifiable as erroneous, without reference or resort to extrinsic information.
At that point, the presumption of correct advice is overcome,
irrespective of the defendant’s outward appearance of
understanding, as it is evident to the court that counsel’s advice
is wrong, and the court must step in, as it is also evident that the
defendant cannot be electing his constitutional rights with
adequate knowledge of the meaning of that choice.”
Id.
at 564,
Gregory v. State
,
“Even if Gregory was erroneously advised of his rights, the record is devoid of any evidence showing that Gregory relied on the advice in deciding to testify. Detrimental reliance on the erroneous advice is a necessary element in determining that the defendant did not knowingly and voluntarily waive his constitutional right to remain silent.”
Id.
at 38,
It is clear in the case
sub judice
that trial counsel’s advice about impeachment with
the first-degree assault conviction was facially incorrect and that the trial court should have
corrected the erroneous advice. The State, citing
State v. Duckett
,
statements are
dicta.
The defendant has the burden to demonstrate reliance on counsel’s
misstatement.
See Gregory v. State
,
[9] Other jurisdictions, addressing the alleged unknowing waiver of the right to testify
in the post-conviction context and in ineffective assistance of counsel claims, have concluded
unanimously that the defendant has not met the burden to demonstrate prejudice under
Strickland v. Washington
,
[10]
Winters v. State
,
There is no indication in the case sub judice that appellant relied detrimentally on his trial counsel’s advice. Appellant does not claim that he would have testified but for the erroneous advice given by his counsel. He baldly asserts, by argument only, that it is “highly likely” that his election was affected, which is mere speculation. Appellant has never claimed that he had decided to testify at his trial or that he changed his mind after his lawyer told him about the impeachment risk. After appellant was advised by his counsel, the judge adjourned court for the day and appellant had the evening to consider his decision. He met with his attorney over the evening recess and told the court the next day that he did not wish to testify. Counsel told the court: “Your Honor, I’ve spoken to my client, Mr. Savoy, and Mr. Savoy, at this time, would like to invoke his Fifth Amendment Right and not testify.”
Furthermore, as the State argues, appellant had nothing to gain from testifying and
much to lose. Defense’s theory of the case was that Mr. Harkless committed the murder, and
appellant maintained in his discussion with the police that he was not at the scene of the
crime. If appellant presented the same alibi he gave to the police, it would have been
rebutted by the State’s evidence that the police investigated it and found no support for it.
If appellant presented a new alibi, the State could have impeached him with his previous
erroneous advice.
Id.
at 545,
The instant case is different. Although the right to testify in one’s defense is a
fundamental constitutional right, a trial court is not required to explain that right to a
defendant. Although defense counsel erroneously explained the consequences of testifying
to the defendant, and the trial court erred in not correcting the erroneous advice, appellant
must show reliance on the erroneous advice. In addition, harmless error analysis is
applicable, and is not applicable to the waiver of a jury trial.
Nalls v. State
,
alibi. The defense’s entire argument was that appellant did not do it; thus appellant could not have testified credibly that he acted in self-defense. Appellant claimed that he was not at the scene, therefore he could not have presented any evidence that Mr. Harkless committed the crime. Nor could appellant have credibly contested the inculpatory statements he made to the police without damaging his own case. Appellant’s only reasonable recourse was to invoke his Fifth Amendment right to remain silent, and that is exactly what he did. [11]
In such a situation, we agree with the State that the question of whether appellant
detrimentally relied on his attorney’s advice is best left for post conviction proceedings.
See,
*30
e.g
.,
United States v. Teague
,
IV.
Finally, we address appellant’s argument that the court abused its discretion in admitting three photo arrays in which Ms. Buschman, Ms. Jay, and Mr. Harkless had identified appellant subsequent to Mr. Ames’ murder. Appellant argues that the photos had no probative value because all three witnesses testified that they knew appellant previously. Their selection of his photo from an array added nothing to their in-court identification. Appellant maintains that the photos prejudiced him because the jury must have surmised that the police had these photos only because appellant had prior contacts with the criminal justice system. The State counters that the court did not abuse its discretion in admitting the *31 photographic arrays because they were probative of the shooter’s identity and there was nothing suggestive about the photos that would cause unfair prejudice. We hold that the court exercised its discretion properly in finding that the probative value of the evidence outweighed its prejudicial impact.
Rule 5-403 authorizes a trial court to exclude relevant evidence “if its probative value
is substantially outweighed by the danger of unfair prejudice[.]” Extra-judicial photographic
identifications made shortly after the incident are admissible in evidence, and lack the
suggestiveness inherent in an in-court identification.
Straughn v. State
,
The court did not abuse its discretion here. Identification of the murderer was the central issue at trial. Ms. Jay’s and Ms. Buschman’s out-of-court identification of appellant as the murderer shortly after the incident was highly relevant. The fact that the jury might have surmised that appellant had a prior criminal record is insufficient prejudice to warrant reversal. [13]
*32
Appellant’s reliance on
Arca v. State
,
JUDGMENTS OF THE CIRCUIT COURT FOR BALTIMORE CITY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
Notes
[1] The State nolle prossed the wearing, carrying, and transporting a handgun charge.
[2] Although the victim is sometime referred to as Mr. Eames in the transcript, we shall refer to him as Sean Ames.
[3] Detective Moynihan declined to read the offensive word used by appellant at trial.
[4] Rule 4-252 provides, in pertinent part, as follows: “(a) Mandatory motions. In the circuit court, the following matters shall be raised by motion in conformity with this Rule and if not so raised are waived unless the court, for good cause shown, orders otherwise: (1) A defect in the institution of the prosecution; (continued...) (...continued) (2) A defect in the charging document other than its failure to show jurisdiction in the court or its failure to charge an offense; (3) An unlawful search, seizure, interception of wire or
[5] Appellant states in footnote 3 of his brief that “should this Court decline to reach the merits of these arguments, Appellant retains the right to argue in post-conviction proceedings that trial counsel was ineffective in failing to preserve them.”
[6] The current version of Fed. R. Crim. P. 52(b) provides that “[a] plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.”
[7] We point out that the standard is “knowing and voluntary,” and not “knowing and intelligent.”
[8] If Tilghman v. State , 117 Md. App. 542, 560, 701 A.2d 847, 856 (1997), can be interpreted to suggest that a reviewing court presumes reliance if nothing in the record indicates clearly that the defendant did not rely on the erroneous advice, in our view, those
[11] Appellant’s argument that reversal is mandated because the trial court should have
taken corrective measures fails for another reason—the harmless error doctrine. We do not
reach harmless error, or prejudice to appellant, and leave that to any post-conviction
proceeding he indicates he will file if he fails in this appeal.
Most errors are subject to the harmless error analysis. The exception to this general
rule is structural error, that is, errors which undermine the fundamental legitimacy of the
judicial process.
See, e.g.
,
Boulden v. State
,
[12] In light of our holding that appellant failed to show that he relied detrimentally on the erroneous advice, we decline to address the State’s argument that appellant is not entitled to reversal because of the invited error doctrine.
[13] Although Mr. Harkless’ identification of appellant was less relevant than the eyewitnesses’ identification, the admission of the photo array shown to Mr. Harkless, which was identical to the other two photo arrays, could not have added any additional prejudice.