Bowers v. State

EYLER, Judge. The appellant, Jerome Bowers, was convicted by a jury in the Circuit Court for Baltimore City of first degree assault, second degree assault, and use of a handgun in the commission of a crime of violence. Appellant was acquitted of charges of attempted first degree murder, attempted second degree murder, and wearing, carrying or transporting a handgun. After merging the conviction of second degree assault, the court imposed a 25 year sentence for the conviction of first degree assault, and a consecutive five year sentence for the ⁴⁰³ handgun conviction.

Appellant had represented himself at trial. Appellant inquires on appeal (1) whether the trial court erred by “forcing” him to represent himself at trial despite a failure to comply with Maryland Rule 4-215, and (2) whether the trial court erred by refusing to grant his motion for judgment of acquittal on the attempted first degree murder and attempted second degree murder charges. We find no error, and affirm the judgments of the trial court. FACTS Jiña Jun, a carry-out restaurant employee in Baltimore City, was outside of the restaurant just before closing time on April 13, 1997, when she heard an argument in the store.

Jun testified that she saw a man she believed to be appellant and Clarence Jones, the victim, come out of the store. She testified that the man was pointing a gun at Jones and they were struggling. Jun heard “about more than five” gunshots and saw Jones and his assailant run in opposite directions. Five minutes later, Jones returned to the restaurant bleeding and with a hole in his pants.

Jones testified that as he was about to leave the restaurant, appellant grabbed him and shot him once in the right thigh area. The bullet had gone into and then out of the victim’s leg. Jones heard a total of “about three” gun shots. He testified that he had never seen appellant before, and did not know why appellant shot him.

Jones’s friend, Dwayne Newton, said that he saw appellant grab Jones in the doorway to the restaurant, and then saw “big flames go straight between them.” Newton said that there were “three or four” gunshots. Discussion Appellant first contends that the trial court did not comply with the requirements of Maryland Rule 4-215(a)(3) relating to notice of the allowable and mandatory penalties for all crimes charged, and thereafter permitted him to discharge his ⁴⁰⁴ appointed attorney on the day of trial, without allowing him. to retain another attorney. Appellant argues that he was not advised of the allowable penalties or mandatory penalties for two of the charged crimes at his very first appearance in court without counsel in accordance with Rule 4-215(a)(3). Appel-' lant asserts that he is therefore entitled to a new trial.

Appellant also contends that the trial court erred by refusing to grant his motion for judgment of acquittal as to the attempted first degree murder and attempted second degree murder counts. Appellant acknowledges that the jury verdict acquitting him of those charges rendered any error harmless as to those counts,.but asserts that the erroneous submissioñ. of those counts to the jury may have resulted in a compromise verdict affecting the jury’s consideration of the remaining counts. For this reason, appellant seeks a new trial. I. A. Appearances Before the Circuit Court On July 23,1997, appellant first appeared in court, without á lawyer, for his arraignment.

At this time, he was advised of all allowable penalties and mandatory penalties relating to the six crimes charged in the case, without consideration of any enhancement of penalties that might occur at sentencing due ■ to the fact that appellant had previous convictions on his record. On this date, appellant was told in part that he would face a maximum of 25 years for a conviction of first degree assault, between five and 20 years for a conviction of using a handgun in the commission of a crime- of violence, and a maximum of three years for wearing, carrying or transporting a handgun. Appellant was informed that a sentence for use of-a handgun in committing a violent crime would be served without the availability of parole during the first five years. On August 13, 1997, appellant appeared, in court for a - “rearraignment.” Appellant claimed, as he did on his first appearance, that he would. be represented by a privately retained attorney, although again no defense attorney appeared on his behalf.

Appellant stated that he was hot ⁴⁰⁵ prepared on this date because he had misread the date on his subpoena. The court determined that appellant had waived his right to counsel at arraignment and set a trial date. On October 27, 1997, the scheduled trial date, appellant appeared for a third time in court without counsel. Appellant claimed his efforts to retain private counsel had failed, and he requested representation by the Office of the Public Defender.

The court determined that appellant had not effectively waived his entitlement to representation by the Public Defender. At this hearing, the court informed appellant for the first time in open court that the State had filed a notice of additional penalties, under which the maximum possible sen- • tence for wearing, carrying or transporting a handgun would be increased from three to ten years, with a mandatory minimum sentence of one year. 1 The case was continued, in part to allow appellant to request representation by an attorney from the Office of the Public Defender. Thereafter, the case was scheduled for trial on December 15 and an attorney from the Public Defender’s Office was assigned to appellant’s case. On December 15, 1997, appellant appeared for trial with an attorney from the Office of the Public Defender.

The attorney for the State informed appellant again of the enhanced penalty for the handgun charge, and then stated, The other enhanced penalty served upon the defendant is if he is convicted of a crime of violence in this case or the charge of use of a handgun in commission of a crime of violence in this case, that he will be sentenced — and this is a mandatory sentence, not within the court’s discretion — that the defendant will receive whatever sentence he receives for that crime of violence, but he will have to serve the first ten years of that without parole. Appellant then attempted to inform the court of his dissatisfaction with his attorney’s handling of pre-trial motions. The following occurred: ⁴⁰⁶ THE COURT: Do you want to be represented? [THE DEFENDANT]: I’m telling you the reason why. THE COURT: You do not have the privilege of deciding who your public defender will be.

You either want to be represented or you don’t. [THE DEFENDANT]: I want representation, but I want to discuss why I do not want to be represented by her. THE COURT: You don’t want a lawyer? THE DEFENDANT: I don’t want to be represented by her, particularly. THE COURT: All right.

Put it on the record. Appellant then detailed his perception that his appointed attorney had acted unprofessionally toward him, had refused to present pre-trial motions that he had worked on, and would not assist him to press criminal charges against another person. Appellant’s colloquy with the court then continued: THE COURT: I find no major or just reason to discharge your lawyer. You want a lawyer to represent you in the trial?

THE DEFENDANT: Yes, I do, but I don’t want any improper representation. THE COURT: First of all, stand up for a minute. This is your lawyer. She is in this case.

She is ready to represent you. Do you want her to represent you or not? THE DEFENDANT: I don’t want her. THE COURT: All right.

Let’s pick a jury. After a recess, the case proceeded to trial with appellant representing himself throughout trial and sentencing. 2 B. Waiver of Counsel — Rule ip-215 Rule 4-215(a) provides: ⁴⁰⁷ (a) First appearance in court without counsel. At the defendant’s first appearance in court without counsel, ... the court shall: (1) Make certain that the defendant has received a copy of the charging document containing notice as to the right to counsel. (2) Inform the defendant of the right to counsel and of the importance of assistance of counsel.

(3) Advise the defendant of the nature of the charges in the charging document, and the allowable penalties, including mandatory penalties, if any. (4) Conduct a waiver inquiry pursuant to section (b) of this Rule if the defendant indicates a desire to waive counsel. (5) If trial is to be conducted on a subsequent date, advise the defendant that if the defendant appears for trial without counsel, the court could determine that the defendant waived counsel and proceed to trial with the defendant unrepresented by counsel. The clerk shall note compliance with this section in the file or on the docket.

Subsection (e) provides, (e) Discharge of counsel — Waiver. If a defendant requests permission to discharge an attorney whose appearance has been entered, the court shall permit the defendant to explain the reasons for the request. If the court finds that there is a meritorious reason for the defendant’s request, the court shall permit the discharge of counsel; continue the action if necessary; and advise the defendant that if new counsel does not enter an appearance by the next scheduled trial date, the action will proceed to trial with the defendant unrepresented by counsel. If the court finds no meritorious reason for the defendant’s request, the court may not permit the discharge of counsel without first informing the defendant that the trial will proceed as scheduled with the defendant unrepresented by counsel if the defendant discharges counsel and does not have new eoun ⁴⁰⁸ sel.

If the court permits the defendant to discharge counsel, it shall comply with subsections (a)(1) — (4) of this Rule if the docket or file does not reflect prior compliance. Subsections (b), (c) and (d) pertain to the express waiver of counsel, waiver by inaction in District Court, and waiver by inaction in Circuit Court, respectively. Subsections (b), (c), (d), and (e) all similarly require compliance with the protections of subsection (a) before a court may determine that a defendant may relinquish the right to an attorney. Appellant focuses on the language of subsection (a)(3), contending that the additional and mandatory penalties that were based on his prior convictions are “allowable” or “mandatory” penalties contemplated by the Rule, and that he should have been informed of the full extent of such enhanced penalties upon his first appearance in court without representation.

Appellant does not dispute that he was fully advised of these enhanced penalties before the discharge of his attorney on the eve of trial. Appellant also does not separately challenge the propriety of the discharge of his counsel or the trial court’s decision to proceed to trial shortly thereafter. Finally, appellant does not dispute that he was properly informed of all of his other rights under section (a) during his first appearance in court. Appellant contends only that the asserted violation of Rule 4-215(a)(3) mandates a new trial of the charges of which he was convicted.

Appellant implies that the arraignment judge’s failure to advise him fully of his rights under section (a) upon his very first appearance in court either can not be cured, or was not cured in this case until the day of trial, and thus in some way infected his discharge of defense counsel. The language of Rule 4-215(a), mandating that its advisements be given on the first appearance of an unrepresented defendant, will normally produce error when a defendant is not initially advised under the Rule and, thereafter, does not obtain counsel. .In the present case, appellant was represented by counsel at some point prior to and on the day of trial and, in open court, received all of the advice potentially ⁴⁰⁹ due to him under section (a) before discharging his attorney. The discharge of appellant’s attorney and waiver of his right to counsel therefore complied with the mandate of section (e) that the court ensure there has been compliance with subsections “(a)(1) — (4) ... if the docket or file does not reflect prior compliance.” On the peculiar facts of this case — where a defendant appears initially without counsel, the requirements of section (a) are substantially complied with, and the defendant thereafter obtains counsel but then discharges counsel before trial — we conclude that non-compliance with the timing of all advisements required under subsections (a)(1) — (4) does not constitute error if the defendant is fully advised under those subsections before counsel is discharged. Given our conclusion, it is unnecessary to decide whether appellant was entitled to notice of enhanced penalties under recidivism statutes at his first appearance in court without counsel. 3 To conclude that a failure to comply literally with 4-215(a) upon an unrepresented criminal defendant’s first appearance in court is always error would render certain language of Rule 4-215(b) surplusage.

Section (b) pertains to an unrepresented criminal defendant who wishes expressly to waive the right to counsel. Since subsection (a)(4) requires compliance with the express waiver provisions of section (b) if a defendant wishes to waive counsel on his or her first appearance in court, the language of section (b), standing alone, applies to express waivers that do not occur on a defendant’s first day in court. Section (b) requires in part that [i]f the file or docket does not reflect compliance with section (a) of this Rule, the court shall comply with that section as part of the waiver inquiry. ⁴¹⁰ If any noncompliance with section (a) constituted error, there would be no need subsequently to ensure that section (a) is complied with before a court could accept an express waiver of counsel under section (b). Rule 4-215 is, in this respect, ambiguous.

We need not view Rule 4-215 in isolation, but may read it “in light of the full context in which it appears, and in light of external manifestations of intent or general purpose available through other evidence.” State v. Bell, 351 Md. 709, 718 , 720 A.2d 311 (1998) (citing Stanford v. Maryland Police Training & Correctional Comm’n, 346 Md. 374, 380 , 697 A.2d 424 (1997)). See also Kaczorowski v. Mayor of Baltimore, 309 Md. 505, 514-15 , 525 A.2d 628 (1987). A review of the development of Rule 4-215 indicates that the timing of advisement of the potential punishment for each crime upon a defendant’s first appearance in court is not an enhanced protection afforded to defendants, but a tool designed to promote economy of judicial resources. Rule 723, the predecessor to Rule 4-215, contained an analogous inquiry and advisement of rights and potential penalties.

In debating changes to Rule 723 in 1982, as part of the redesignation that would produce substantially the Rule in force today, 4 the Rules Committee considered the point in time at which the advisement of rights and penalties should be given. In an early draft of the new Rule, an advisement of certain rights apparently would have been required whenever a defendant appeared without counsel "without previously having waived the right to counsel, while an advisement of penalties was apparently required only as part of the procedure for an express waiver of counsel. See Md. Court of Appeals, Standing Comm, on Rules of Practice and Procedure (“Md. Rules Comm.”), Minutes of September 10-11, 1982, p. ⁴¹¹ 71. According to the minutes of the committee meeting, Judge McAuliffe inquired whether the proposed Rule intends the waiver inquiry to be made every time the defendant appears in court without counsel, or only on the first occasion he appears without a lawyer. [Judge McAuliffe] noted that under current Rule 723, when a defendant appears in court without a lawyer but is not waiving his right to counsel, the court must advise the defendant of several specified matters.

If the defendant thereafter appears at trial without counsel, the court can find a waiver.... Judge McAuliffe stated that what worries the court is the defendant who doesn’t want to waive his right to counsel but is using the right and the safeguards to abuse the system. The Court needs to be able to find a waiver and curtail these abusive tactics.... Judge McAuliffe reiterated that under current practice, once the inquiry is properly done and the record so reflects, it does not have to be redone.

Mr. Jones questioned how the judges presiding at subsequent hearings can be sure the original waiver is still effective, i.e. how much of the litany needs to be repeated on subsequent occasions. Judge Proctor stated that the judge presiding at a later hearing cannot be sure the judge presiding at the hearing where the inquiry was made covered all the bases. Judge McAuliffe commented that protection is afforded the subsequent judge through the State’s Attorney’s Office. If the first judge missed something, the State’s Attorney will note it and will inform the next judge of the omission so that it can be rectified.

He asserted that if the defendant is fully advised of his rights at his initial appearance without counsel, the trial judge, at the commencement of the trial, can simply determine if there is a good excuse for the defendant’s appearing without a lawyer. Thus, if there is a prior waiver, the court can make sure it sticks where no good excuse dictates