Baines v. State

Morton, J., delivered the opinion of the Court. In a non-jury trial in the Circuit Court for Baltimore County (Proctor, J., presiding), appellant was found guilty on two separate charges of burglary and one charge of attempted daytime housebreaking. He received concurrent ten year sentences on the burglary convictions and a five year concurrent sentence on the attempted housebreaking conviction. In this appeal appellant first contends that the trial judge committed reversible error “by improperly entering guilty verdicts without first affording the Appellant’s counsel the right to argue the merits of his case.” At the conclusion of the state’s case, appellant moved for a judgment of acquittal, which motion was denied.

Appellant was then advised of his right to testify or remain silent and he elected not to testify. The records reads as follows: “MR. KINSLEY [Counsel for Defendant]: * * * Knowing your constitutional right to remain silent or to testify, would you like to testify or remain silent? DEPENDANT: Remain silent. ⁵⁰⁷ MR.

KINSLEY: Remain silent. The Defense rests, and I’d like to be heard briefly — THE COURT: The testimony is clear that these purses were taken for Linda Matthews. The testimony is also clear that, in my judgment, everybody admits, she knew and even Mr. Baines [appellant] himself testified he willingly made a statement to Officer Kiblin, and the statement to Officer Kiblin was that he knew these purses, he could not be sure from what apartment he had gotten the purses which is understandable, but he knew that he had gotten these purses by breaking and entering. The one purse was clearly identified by Mrs. Hartsel as her purse.

The fact that it had the initials L.M. in it does not affect the fact that the purse was clearly identified, and is the type of purse that is easily identifiable. So you run all of this together which proves guilty beyond a reasonable doubt, in my judgment. He also had an attempted breaking and entering in the Fields case, which is also proved, in my judgment.” It is in this factual posture that appellant contends that the trial judge improperly entered guilty verdicts without first affording appellant’s counsel the right to argue his case. We agree.

The state relies heavily upon the recent holding of this Court in Covington v. State, 34 Md. App. 454 (1977). 1 Chief Judge Gilbert, writing for a majority of the Court in Covington , stated, at 465: “We observe that in the instant case neither the appellant nor his counsel raised, at trial, any issue of a denial of argument of the law applicable to the agreed facts. Thus the issue is raised for the first time on appeal. Maryland Rule 1085 provides that we should not ordinarily decide any issue which ⁵⁰⁸ ‘does not plainly appear by the record to have been tried and decided by the lower court[.]’ Notwithstanding Maryland Rule 1085, we reversed the trial court in Moore, supra, t 2 l even though the issue of argument by counsel was not raised in the trial court. While Md. Rule 1085 was invoked by the State in its brief in Moore, we did not address the point.

We believe Moore’s articulation of the right of counsel to be correct, but we should not have considered the matter on direct appeal because it was not raised nor decided in the trial court. Md. Rule 1085. To the extent that Moore indicates that the issue may be presented for the first time on appeal, Moore is expressly overruled.” (Citations omitted.) The state argues that in the case at bar, as in Covington , the “question is not properly before this Court for review because the issue ‘does not plainly appear by the record to have been tried and decided by the lower court.’ Md. Rule 1085; Covington v. State, supra.” It is further suggested that the state “does not believe that the trial court affirmatively denied Appellant or his counsel the right to argue the merits of the case” and, therefore, “the case at bar is distinguishable from Yopps v. State, 228 Md. 204 (1962), upon which Appellant relies.” Yopps makes it clear, at 207: “The Constitutional