Brown v. State

MacDaniel, J., delivered the opinion of the Court. Thomas Michael Brown and Charles William Summers, appellants, were convicted by a jury in the Circuit Court for Queen Anne’s County of (1) breaking with an intent to steal property valued at over $300; (2) malicious destruction of property, and (3) rogue and vagabond. Summers was sentenced to nine years imprisonment for the breaking conviction, with concurrent one year sentences for the malicious destruction and rogue and vagabond convictions. Brown was sentenced to eight years on the breaking conviction, with concurrent one year sentences for the malicious destruction and rogue and vagabond convictions.

Appellant Summers contends the trial court committed reversible error by denying his request for a postponement. Both appellants contend: 1. The evidence was insufficient to sustain all convictions. 2. The offenses of malicious destruction of property and rogue and vagabond merge into the offense of breaking with intent to steal property valued at over $300. 3.

They were denied their constitutional right to counsel when the trial court forced them to proceed with the trial without the aid of counsel. We find all contentions without merit and shall affirm. The facts are uncomplicated. The manager of an Exxon station and repair shop in Queen Anne’s County, concerned over recent burglaries returned to the station — after it had been secured and closed for the day — with the express purpose of preventing any further burglaries.

He arrived ⁶⁵³ about 10:00 p.m. and got into a parked car where he could observe the premises. At approximately 12:15 a.m., he observed two men, one carrying a five-gallon bucket of water, come to the front of the station from the restrooms. One of the men hid behind a car while the other climbed on a pile of junk under a window, looked inside, and then broke the window. As that man was reaching inside the broken window, the manager, armed with a rifle, apprehended the two men.

A state trooper arrived shortly thereafter and placed the two men, identified as the appellants herein, under arrest. Appellants explained their actions to the state trooper as necessary for them "to get another container to put water in for their disabled car.” The trooper ascertained that an alleged disabled vehicle containing two passengers was parked about one-quarter of a mile from the station. We shall first address appellant Summers’ contention that the lower court erred in refusing to grant a postponement. Two motions for continuance had been previously granted to Summers (February 21, 1980 and April 28, 1980), when, on July 8, 1980, Summers again requested a postponement of the trial scheduled for July 9, 1980.

This request was based upon the fact that Summers’ mother was in a coma and expected to die. When considering a motion for postponement, the trial court is governed by Maryland Rule 746 (b) which states: "Upon motion of a party made in writing or in open court and for good cause shown, the county administrative judge or a judge designated by him may grant a change in trial date.” 1 Appellant argues that the condition of his mother constituted "extraordinary cause” necessitating a postponement, a denial of which constituted a clear abuse of the trial court’s discretion. ⁶⁵⁴ The trial court ascertained that the doctor could not predict how long Summers’ mother would live, the case had been postponed twice before, the expected trial time was one day, and decided that if she died before trial a postponement would be granted. Based upon these facts we cannot say that the trial court’s denial of the requested postponement amounted to a clear abuse of discretion. State v. Hicks, 285 Md. 310 (1979); Chance v. State, 45 Md. App. 521 (1980).

We shall now address the three contentions made jointly by appellants. I. Sufficiency Appellants contend that the proof of breaking with the intent to steal goods of the value of over $300 was insufficient to convict because of a lack of proof of felonious intent. The intent here was proven by the circumstances — climbing upon a pile of junk to reach and break a window in the middle of the night at a closed gasoline station containing goods inside in excess of the value of $300. It is not necessary that goods actually be taken to prove the intent to steal.

Herbert v. State, 31 Md. App. 48 (1976); Sparkman v. State, 3 Md. App. 527 (1968). Appellants also argue that their explanation that "they were merely attempting to obtain a container from within the building to obtain water for their disabled car,” was sufficient to override the finding of felonious intent needed for conviction. This is totally without merit. Appellants ignore the evidence that at the time of their apprehension they were already carrying a five-gallon container filled with water.

Without appellants’ explanation the evidence was sufficient to convict; with the explanation the trier of fact had a right to disbelieve and so convict. Brown v. State, 39 Md. App. 497, 506 (1978). Regarding the rogue and vagabond convictions, appellants likewise assert that the State failed to prove the requisite intent. This argument is specious.

The evidence which supported the intent for the breaking also amply supported the intent for the rogue and vagabond convictions. Appellants next assert a failure by the State to produce sufficient evidence to prove a willful or malicious intent to ⁶⁵⁵ destroy, injure or molest property to support their convictions for malicious destruction of property. Here, appellants did break the window. They claim otherwise, but the jury chose to disbelieve their explanation and found that their intent was to break the window to steal.

This evidence was sufficient to support the convictions. Spears v. State, 38 Md. App. 700 (1978).

II

Merger Appellants maintain that the offenses of malicious destruction of property and rogue and vagabond merge with the offense of breaking with intent to steal property valued over $300. In Rose v. State, 37 Md. App. 388, 393-94 (1977), cert. denied, 281 Md. 743 (1977), this Court said: "While we have often refused to decide a question of merger which has not been raised or decided in the trial court in cases in which concurrent terms were imposed, we have not declined to consider such questions in cases in which consecutive terms were imposed.” (Footnotes omitted.) Here, the terms imposed were concurrent. Since this issue was not raised below, it is not properly before us. Maryland Rule 1085; Johnson v. State, 38 Md. App. 306 (1977); Colbert v. State, 18 Md. App. 632 (1973); Moore v. State, 15 Md. App. 396 (1972).

III

Waiver of Right to Counsel It is well established that a defendant in a criminal prosecution has two independent constitutional rights with regard to the management of his defense. The right to the assistance of counsel is guaranteed by the Sixth and Fourteenth Amendments to the federal Constitution. See, e.g., Argersinger v. Hamlin, 407 U.S. 25 (1972); Gideon v. Wainwright, 372 U.S. 335 (1963). A defendant in a criminal case also has a constitutional right to proceed without counsel, so long as certain ⁶⁵⁶ well-defined procedural safeguards are complied with.

See Faretta v. California, 422 U.S. 806 (1975). Whenever a defendant proceeds without the assistance of counsel, either because he has affirmatively waived his right to counsel or has waived his right to counsel by conduct, there must be an appropriate inquiry on the record in open court, under the procedural safeguards required by Maryland Rule 723. Maryland Rule 723 states: "a. Appearance of Defendant.

A defendant shall appear in person at the time and place specified in the summons or other writ issued pursuant to Rule 720 (Original Summons, Warrant and Notice to Appear), unless his counsel enters an appearance for him in writing on or before the time. If the defendant fails to appear personally or by counsel, the court may direct the clerk to issue a warrant for his arrest or to reissue the summons for personal service on the defendant, b. Appearance Without Counsel. When a defendant appears pursuant to section a of this Rule and is not represented by counsel, the court shall: 1.

Make certain that the defendant has received or receives a copy of the charging document; 2. Advise the defendant that he has a right to be represented by counsel at every stage of the proceedings; 3. Advise the defendant of the matters required by subsections 1, 2 and 3 of section c of this Rule; 4. Advise the defendant who desires counsel that he must retain the services of counsel and have counsel enter an appearance for him within 15 days; 5.

Advise the defendant that if he finds he is financially unable to retain the service of private counsel, he should apply to the Public Defender as ⁶⁵⁷ soon as possible for a determination of his eligibility to have counsel provided for him by the Public Defender; 6. Advise the defendant that if the Public Defender declines to provide representation, the defendant should immediately notify the clerk of the court so that the court can determine whether it should appoint counsel pursuant to Article 27A, section 6 (f), of the Maryland Code; 7. Advise the defendant that if counsel does not enter an appearance within 15 days, a plea of not guilty will be entered pursuant to section b 3 of Rule 731 (Pleas), and the defendant’s case will be scheduled for trial. The court shall also advise the defendant that if he appears for trial without counsel, the court could determine that he has waived his right to counsel by neglecting or refusing to retain counsel or to make timely application to the Public Defender for counsel, and in that event, the case would proceed with defendant unrepresented by counsel. c.

Waiver Inquiry. When a defendant indicates a desire or inclination to waive counsel, the court may not accept the waiver until it determines, after appropriate questioning on the record in open court, that the defendant possesses the intelligence and capacity to appreciate the consequences of his decision, and fully comprehends: 1. The nature of the charges against him, any lesser included offenses, and the range of allowable penalties, including mandatory and minimum penalties, if any; 2. That counsel can render important assistance to him in determining whether there may be defenses to the charges or circumstances in mitigation thereof, and in preparing for and representing him at trial; ⁶⁵⁸ 3.

That even if the defendant intends to plead guilty, counsel may be of substantial assistance in developing and presenting information which could affect the sentence or other disposition; 4. That if the defendant is found to be financially unable to retain private counsel, the Public Defender or the court would, if the defendant wishes, provide counsel to represent him. d. Procedure After Waiver Inquiry. 1. If the court accepts the waiver of counsel pursuant to section c of this Rule, it shall direct that a trial date be scheduled. 2.

If the defendant appears in court without counsel, at any proceeding after his appearance pursuant to section a of this Rule, the court may not proceed before determining whether the defendant at that time desires to waive counsel, or has waived counsel, either affirmatively or by neglecting or refusing to obtain counsel. e. Record of Compliance. The advice of the court given pursuant to sections b and c of this Rule and the finding that the defendant waived counsel pursuant to sections c and d of this Rule shall be made on the record in open court. The docket entries shall affirmatively show compliance with this Rule.” In the case sub judice, appellants appeared at their arraignment on October 11,1979, without counsel and were properly advised at that time of their rights under section b of Rule 723.

Sometime after their arraignment, the public defender entered his appearance on behalf of the appellants and the case was set for trial on February 21, 1980. On the day of trial, appellant Brown indicated to the court that he did not wish to proceed with trial in the absence of appellant Summers. 2 The court granted the postponement and ⁶⁵⁹ rescheduled the trial for April 28,1980. Appellants appeared for trial with the Public Defender. This time a postponement was requested to allow appellants to retain private counsel.

The trial court granted the postponement and cautioned the appellants: "THE COURT: All right, gentlemen, the case will be continued until July 9th at ten o’clock in the morning. That should give you adequate time to get an attorney, and the Court is going to advise you again that you are entitled to be represented by an attorney of your choice, and you have certain rights — in other words, what I’m doing is repeating what the court advised you when you appeared before Judge Everngam, that you have a right to be represented by a private lawyer, and if you can’t afford a private lawyer, and it’s concievable [sic] to the Court that you might not be able to raise all the funds to get a private lawyer, then you should promptly return to the public defender and reapply to the public defender. As I have said before, an attorney can render important assistance to you in determining whether there are defenses to the charges or circumstances in mitigation thereof and preparing and representing you at the trial, and even if you decided later to plead guilty, an attorney may be of substantial assistance in the sentence or other disposition. Of course, as I have indicated before, if you still find you are financially unable to retain a private lawyer, the public defender or court would, if you desire and wish, provide an attorney to represent you.

Now, if there is to be any change in your address, you must promptly notify the clerk of this court, and you go back to the public defender if you can’t get a private lawyer because of financial reasons, ⁶⁶⁰ and if he refuses or declines to appoint