Shirley A. SMITH v. STATE of Maryland.
No. 107, Sept. Term, 1985.
Court of Special Appeals of Maryland.
Oct. 7, 1985.
498 A.2d 284 | 625
Submitted before MOYLAN, GARRITY and ADKINS, JJ.
ADKINS, Judges.
In January 1984, appellant Shirley A. Smith was convicted of a handgun offense. She receivеd a three-year sentence, all but four months suspended in favor of three years’ probation. Among the conditions of probation were requirements that Smith report regularly to her probation agent, obey all laws, and participate in a drug screening program. In October 1984, Smith was charged with violating those conditions of probation. The trial cоurt found Smith in violation, revoked probation, and reinstated the original sentence less credit for the four months served.
On appeal from that disposition, Smith contends that
- She was denied due process of law because the trial judge directed his law clerk to investigate the allegations against her and in revoking probation relied on that investigation as revealed by the law clerk‘s testimony at the revocation hearing;
- The trial judge erred in refusing to allow her to rebut the law clerk‘s testimony; and
- The trial judge found her guilty of violation of probation without allowing her counsel to make a closing argument.
We reverse on the first issue and thus do not reach the second and third.
Turning to the record before us, we again note that Smith was charged with violation of three сonditions of probation. As to one of these, there really was no contest. Smith admitted that she had violated the law. She had been arrested for and, it seems, convicted of possession of heroin. Smith and her probation agent present somewhat differing
At thе conclusion of evidence presented by the State and the defense, the judge asked the prosecutor whether he had any rebuttal. Upon receipt of a negative response, the judge announced “I am going to call [my law clerk] to the stand ... with respect to the contact the defendant has had with me directly.” The law clerk was then examined by the judge. That examination revealed that on November 8, 1984, Smith had called the law clerk from the Baltimore City jail where Smith had been incarcerated for violation of probation because of failure to report. Smith told the clerk she had failed to report “because of bleeding problems related to her pregnancy.”
The law clerk went on to testify that at Smith‘s request, she had called one Pat Slater at University Hospital. Recounting hearsay and sometimes double hearsay from Ms. Slater and others, the clerk in substance said that Smith had not had bleeding problems connected with her pregnancy, and that the problems she had had were related to heroin abuse.1
I don‘t believe you now and I didn‘t believe you then [at sentencing on the underlying handgun chаrge] and I can‘t believe anything you said and that is why I carefully had it checked by my law clerk to determine whether or not there was anything valid to your explanations and as usual the explanation from the doctor at the hospital, the nurse at University and from the social worker, all of whom were called [by telephone], is the same.3
The judge concluded by revoking Smith‘s probation.
Smith now contends that she was denied due process because the judge, through his law clerk, investigated allegations relating to the violation of probation ex parte and relied on the information so obtained to revoke probation. The contention is a forceful one. But before we reach it, we must decide whether it has been preserved for our review. The problеm arises because Smith voiced no objection whatsoever to the law clerk‘s testimony, nor did she
The principle undergirding the rule is that a trial judge may be reversed only for prejudicial error.
[E]rror in a trial court may be committed only by a judge, and only when he rules, or, in rare instances, fails to rule, on a question raised before him in the course of a trial.... Appellate courts lоok only to the rulings made by a trial judge, or to his failure to act when action was required, to find reversible error.
Howell v. State, 56 Md.App. 675, 680, 468 A.2d 688 (1983), cert. denied, 299 Md. 426, 474 A.2d 218 (1984), cert. denied, ___ U.S. ___, 105 S.Ct. 520, 83 L.Ed.2d 408 reh. den. ___ U.S. ___, 105 S.Ct. 942, 83 L.Ed.2d 954 (1985) (quoting Braun v. Ford Motor Co., 32 Md.App. 545, 548-549, 363 A.2d 562 (1976)) [emphasis added in Howell ]. Thus, “[e]ven errors of Constitutional dimension may be waived by failure of counsel to interpose timely objection at trial....” Medley v. State, 52 Md.App. 225, 448 A.2d 363 (1982).
In the final analysis, the question of whether to review an issue nоt raised and decided below is discretionary with the appellate court. Booth v. State, 62 Md.App. 26, 38, 488 A.2d 195 (1985). The Court of Appeals has observed that this discretion should be exercised in favor of review when the “unobjected to error [is] compelling, extraordinary, exceptional or fundamental to assure the defendant a fair trial.” State v. Hutchinson, 287 Md. 198, 203, 411 A.2d 1035 (1980). We hold that this is such a case. For reasоns we shall now discuss, Smith was denied the right to have her guilt or innocence of probation violation decided by an impartial tribunal. That right was fundamental to assure her a fair trial and its denial, as shown by the record, was both extraordinary and exceptional.
Here we have an ex parte communication from Smith to the judge (or his clerk) followed by an investigation оf Smith‘s ex parte statements, apparently conducted by direction of the judge, followed in turn by testimony about the investigation produced at the instance of and under questioning by the judge.
In our Scott a member of the Medical Office of the former Supreme Bench of Baltimore City communicated ex parte to a judge a sentencing recommendation in violation of former
The effect of the communication here was egregious. It turned the judge from an impartial arbiter, bound to decide the case on the facts presentеd in open court, into an investigator for the prosecution. In short, our adversarial system was abandoned in favor of an inquisitorial one. The judge took it upon himself, through his clerk, to unearth information about a case he was to try. This eliminated any vestige of impartiality. Smith‘s initiation of the ex parte communication that triggered the investigation does not alter this fact. Nоr was the situation improved because the judge saw to it that the results of the investigation were adduced via testimony. By then, the damage—the elimination of impartiality or its appearance—had already been done. We add that the procedure would have been just as improper had the results of the investigation been favorable to the defense. The State, as well as the defendant, is entitled to an impartial judge.
The State says that none of this matters because
“The law requires the trial of a defendant not only to be fair but to give every appearance of being fair.” Scott, 289 Md. at 655, 426 A.2d 923. The matter before us met neither requirement. The judge not only investigated (or had his clerk investigate) Smith‘s defenses, he also denied her any opportunity to respond to the results of the investigation. And, as we have seen, he relied strongly on the investigation information when he revoked Smith‘s probation. This denial of due process so tainted the whole procedure that we must reverse despite the existence of evidence of violation of at least one condition of probation.
JUDGMENT REVERSED. CASE REMANDED FOR NEW HEARING BEFORE A DIFFERENT JUDGE. COSTS TO BE PAID BY MAYOR AND CITY COUNCIL OF BALTIMORE.
I fully agree with the majority‘s discussion of the legal principles and their application. However, it is quite apparent that our ruling today overstates the effect on the appellant of the trial court‘s due process violations. The error below, egregious though it may have been, did not affect the outcome; therefore, it amounted to harmless error.
On January 24, 1984, Shirley Smith was convicted of unlawfully carrying a handgun. The Circuit Court for Baltimore City (Ward, J.) sentenced her to three years’ imprisonment but suspended all but three months of the sentence and placed her on supervised probation for a period of three years.
On Decembеr 7, 1984, the same judge presided over the appellant‘s probation revocation hearing. Appellant was charged with violating Rule # 1, Rule # 4, and Rule # 10 of the terms of her probation. Rule #1 stated that the appellant must report to her probation agent. Rule # 4 commanded the appellant to obey all laws. Rule # 10 was a special conditiоn directing the appellant to attend a drug rehabilitation program.
On September 11, 1984, the appellant was arrested and charged with possession of heroin. As noted in the majority opinion, Ms. Smith was convicted of this charge.
There is no question that the judge, by involving himself through his law clerk in the investigation of the appellant‘s alleged violations of her prоbation, violated the appellant‘s due process rights. Such violations are apparent even though there is a lesser due process standard for such probation hearings. See, Fuller v. State, 64 Md.App. 339, 495 A.2d 366 (1985). Yet these violations alone do not suffice for reversal.
There is a clear test for determining whether the error was harmless. “[A]n appellant, in a criminal case, establishes error, unless the reviewing court, upon its own indеpendent review of the record, is able to declare a belief,
What is of importance, from an examination of the cases which discuss harmless error, is the realization that if thе error goes to a substantial constitutional right ... that unless the State can prove beyond a reasonable doubt ... that the defendant would undoubtedly have been found guilty ... its employment will always be error.... Younie v. State, 272 Md. 233, 246, 322 A.2d 211 (1974), quoted with approval in Holloway v. State, 26 Md.App. at 395-96, 339 A.2d 319. Therefore, the majority, after explaining the due process violation below, should have continued its analysis of the record to determine whether thе error was harmless.
In this case, it is quite clear that the appellant did, in fact, violate one of the conditions of her probation. Her conviction on possession of heroin is quite clear and undisputed. There is no reasonable doubt about her failure to obey all laws. Thus, the untainted and self-evident violation of the probation caused thе revocation.
A probationer is entitled to retain his liberty as long as he actually abides by the conditions of this probation. Probation may not be revoked unless the probationer has in fact acted in violation of one or more conditions of this probation. Dean v. State, 291 Md. 198, 202, 434 A.2d 552 (1981).
The judge‘s improper conduct at the hearing, which is the subject of the majority‘s oрinion, affected the determination of the other two alleged violations by the appellant. Here, it is quite clear that the probationer did, indeed, violate a condition of her probation. It is this violation that alone caused the revocation and made the other errors harmless.
Unquestionably, the judge below committed error. His actions were properly condemned by this court. For the purposes of the revocation of the apрellant‘s probation, however, there were insufficient grounds for reversal of that revocation. Therefore, I dissent.