Brockman v. State

Lowe, J., delivered the opinion of the Court. From the facts elicited during the murder trial at which appellant, Harry Edward Brockman, was convicted by a jury in the Circuit Court for Prince George’s County, or from the facts elicited during his plea-bargained deposition, it is clear that he committed one of the most heinous of crimes against ⁶⁸⁴ his fellow man — murder for hire. Regardless of the contempt in which such persons are held, democracy demands that throughout the prosecution its rules of fair play apply as well to them as to others. Whether the trial concludes with a determination of the defendant’s guilt or innocence, the rigidity of the rules remains.

That Anglo-Saxon concept of procedural fair play, conceived initially to protect the innocent, has expanded to protect the admittedly guilty as well. Even a guilty plea will not be accepted unless it is shown that the accused is fully aware of the consequences of his act, Boykin v. Alabama, 395 U. S. 238 , that the accused was counseled, Moore v. Michigan, 355 U. S. 155 and that the State demonstrates on the record a strong factual basis for the plea. McCall v. State, 9 Md. App. 191 , cert. denied, 258 Md. 729 . It was but a short step to apply rules of fair play to plea negotiations, if not at the advent of that once questionable procedure, at least after it had become socially respectable.

The Supreme Court, the Court of Appeals and this Court have all required the imprimatur of fair play in consummated plea bargains. Santobello v. New York, 404 U. S. 257 ; Miller v. State, 272 Md. 249 ; Wynn v. State, 22 Md. App. 165 . One difficulty inherent in the plea negotiation process is determining the point at which the bargain is so complete that the parties cannot withdraw — the point of no return. Clearly at no point prior to the entry of the plea can the accused be compelled to perform specifically, i.e., to plead guilty.

The bargain must thus be slightly one-sided since reason tells us the State may not always so freely withdraw; although, we have decided that under proper circumstances the State may, indeed should, abrogate the agreement: “If prior to the consummation of a plea bargain he foresees that it might endanger society, he has not merely the right, but the responsibility, to withdraw from the agreement.” Wynn, 22 Md. App. at 172 . ⁶⁸⁵ We have not heretofore dealt with circumstances where the State was bound by its offer. In the case at bar the State attempted to withdraw from a bargain made, and we must now consider whether that decision was allowable. The Facts Appellant and a co-defendant were being tried for the murder of Gerald Godbout, Jr. whom appellant shot while the victim was in his automobile, although the intended victim was not Mr. Godbout, but a female occupant of the vehicle. Appellant explained that “A contract to dispose or murder Mrs. Ward, who was with Mr. Godbout, had been taken and it was [being] executed at that time.” A day and a half after the trial had begun and one or two witnesses had been heard, a renewed effort at plea negotiations was made.

It was apparent that the State was anxious to obtain evidence against the person who negotiated, but did not execute, the contract. Appellant’s attorney explained 1 that: “On the second day, I believe, the 9th of July, as a result of multiple conferences with Mr. Neal, [the Assistant State’s Attorney] the other attorney, myself and Judge Parker, an offer was made by the State, which offer was as follows: If both defendants pled to second degree murder the State would drop the first degree charge and all remaining counts of that indictment. In exchange for that the State would recommend to the judge that for the second degree conviction that no more than ten years be the sentence. For a — in exchange of that plea bargaining each defendant was to give a full statement to the State by way of a sworn deposition and, in addition, was to testify before the grand jury.

An explanation: At that time the ⁶⁸⁶ State felt that Mr. Maness [the co-defendant] and Mr. Brockman were the individuals that, in fact, killed Mr. Godbout [the actual though unintended victim] but that they, the defendants, were, quote, put up to it by a Mr. Ward, who was the husband of the [intended] victim, Mrs. Ward. Now, after considerable discussions at which Judge Parker was present, and it took place over many hours in chambers, the State agreed to that and'we talked to our respective clients. Mr. Maness accepted the offer. I then advised Mr. Neal and Judge Parker that it was the decision of Mr. Brockman at that time to refuse it.” With one of two defendants about to plead guilty the court recessed for the day.

After consultation with counsel, appellant overnight changed his mind and the following day agreed to accept the offer as had his co-defendant. “At no time previous to this did Mr. Neal indicate to me. or in my presence that this deal must be accepted immediately. I had advised them it was not accepted, that Mr. Brockman wanted to think about it overnight. There was no time element put on this offer.” Appellant’s co-defendant, Mr. Maness, had in the meantime fulfilled his part of the bargain by testifying for the State before the grand jury. The State was thus reluctant to continue to hold appellant’s offer open and contended “. . . that Mr. Brockman had turned down the offer to enter a plea of guilty to second degree murder, that there was no need, in my mind, for the State to accept the plea to second degree murder, based on the evidence that we received from Mr. Maness, and we were able to corroborate as a result of the search warrant that evening.” As a consequence of appellant’s change of heart, he urged the State to avail him of the offer.

The negotiations were ⁶⁸⁷ concluded in the chambers of the judge — who presumably participated to some degree. Appellant’s attorney indicated that: “. . . there was an encouragement on the part of Judge Parker, in our presence, to the State to go ahead with the deal.” The State was more specific: “A Yes. I recall him indicating we were probably going to be trying this case for the next twenty years in the State and Federal Courts if prosecuted.” For whatever the reason the State: “Somewhat reluctantly, but nevertheless in agreement, did agree to take the second degree plea.” There was little faith evident between the contracting parties. The atmosphere apparent from the record was that of suspicious adversaries approaching each other as if on eggshells.

A cautious cooperation prevailed because of this mutual distrust. “Mr. Brockman had indicated to me that he, in some respects, distrusted Mr. Neal and had reservations about giving a statement for he was fearful that in giving a statement that there would be some waiver on Mr. Neal’s part.” The State, on the other hand, revealed its own suspicions when it expressed its reservation during appellant’s deposition: “Over quite some period of time I felt Mr. Brockman was at least parrying with me and was not being straightforward with his answers . . . .” Our own review of that deposition does not accord with the State’s conclusion. We found the answers elicited to be direct, detailed, complete, without equivocation and totally ⁶⁸⁸ inculpatory, with but one exception. That exception concluded the deposition and brought about this ground for appeal. Appellant was asked to identify a picture of the man the State, believed had negotiated the murder contract.

The public defender described the scene. “The picture was handed to Mr. Brockman, who looked at it for a significant period of time, enough time that I was starting to wonder why the delay and what was going through his mind. Mr. Brockman then said — when he was asked if he knew who that picture was of he said, ‘No.’ Mr. Neal hesitated, as I recall. I don’t know if he showed him another picture of Ward or not, but it turned out that was a picture of Ward. There was — then Mr. Brockman leaned over to me shortly thereafter, because I knew something was wrong, and said to me, ‘That was Mr. Ward, but he’s trying to trick me with just one; he’s showing me one photo and he’s trying to trick me and I know that if I don’t testify at Mr. Ward’s trial that this plea bargaining deal won’t go down, and I feel that Mr. Neal is trying to trick me and affect my testimony so bad that it won’t be accepted by the Court.’ In other words, it would be tainted by the single-photo lineup.

And so tainted, as Brockman indicated to me, he would not be allowed to testify, would have no use and would be forced to trial thereafter. - I explained to Mr. Brockman later on that I agreed with him, that the one-photo spread tainted the case, but that would have nothing to do with the deal. We then offered to Mr. Neal to continue the deposition. Mr. Neal indicated words to the effect, ‘That’s it. The man has committed perjury.

There’s no deal. Everything is off.’ There were a few words exchanged between Mr. Neal and myself and Mr. Marshall [the State’s Attorney who was presumably present] that were not on the record as ⁶⁸⁹ to my disagreement with what the understanding was.” The Law The renunciation of the plea bargain by the State elicited from appellant a Motion for Appropriate Relief praying what amounted to specific performance of the bargain. Finding that the Santobello, Miller, Wynn trilogy ( all supra) was not apposite because the agreement was “in the executory stage,” the judge said that there was nothing: “. . . from my reading of the Miller case or Wynn case or Santobello case, that says the State must go through with a plea bargaining prior to the time of the acceptance of the plea.” Restricting those cases to their factual contexts that conclusion may be reached; however, by dicta as well as by logical extension of the principles involved, it is apparent that no such cut and dry limitation was intended. For instance, we recently extended that “trilogy” to apply to “a negotiated plea of not guilty and trial upon a factual stipulation” in Sturgis v. State, 25 Md. App. 628 , 336 A. 2d 803 .

The principle underlying each of these cases dealing with plea negotiations was that “This procedure to dispose of criminal charges presupposes fairness.” Wynn, 22 Md. App. at 171 ; See Santobello, 404 U. S. at 261 . Fairness is not limited to that which follows acceptance of a negotiated plea but includes the circumstance preceding it as well. Even further, it is of little consequence whether «¿^fairness comes to pass because the State is motivated by ill-will or by the best and most charitable of