Brye v. State

ADKINS, J. Marvie Edward Brye, appellant, was convicted by a jury in the Circuit Court for Baltimore County of second degree assault. He raises the following two questions for our review: I. Did the trial court err by failing to advise appellant of the “nature of the charges in the charging document, and the allowable penalties, including mandatory penalties, if any(,]” as required by Md. Rule 4-215(a)(3)?

II

Did the trial court err in admitting irrelevant and prejudicial evidence? We find no error in the advisements relating to the charge on which appellant was convicted, and that appellant failed to preserve his objection to the challenged testimony. In these circumstances, we shall affirm the conviction. FACTS AND LEGAL PROCEEDINGS On the afternoon of March 27, 2006, appellant’s cousin Christopher Jones, Terri Lomax (the mother of Jones’ eight-year-old daughter), and Dr. Craig Lane (Lomax’s boyfriend), met at Lomax’s apartment in Baltimore County.

Although the meeting was initially cordial, an argument developed. Mr. Jones produced a handgun, then threatened and assaulted Dr. Lane. While holding Lane at gunpoint, Jones called appellant and demanded that he come over to the house. Appellant did as asked.

When appellant arrived, he indicated that he was sorry for not coming sooner and offered to shoot Lane for Jones. ¹¹⁰ Appellant then hit Lane in the face and upper body. A fight ensued, during which Lane managed to flee the house and call the police. The police responded to the area and arrested appellant a few blocks away from Lomax’s home. The day after the altercation, on March 28, 2006, a statement of charges was filed against appellant in the District Court for Baltimore County, charging him with two counts of false imprisonment, two counts of first degree assault, and one count each of second degree assault and attempted armed robbery.

See Md. Rule 4-211(b). On that date, appellant made his initial district court appearance. Both appellant and the district court commissioner signed a form certifying, inter alia, that the commissioner had “INFORMED Defendant of each offense charged and of the allowable penalties, including mandatory penalties, if any[;]” “REQUIRED Defendant to read the Notice of Advice of Right To Counself;]” and “ADVISED Defendant that an appearance for trial without a lawyer may result in the Court determining that counsel was waived and the Defendant may have to proceed without a lawyer.” Thereafter, the State’s Attorney for Baltimore County filed an information against appellant in the Circuit Court for Baltimore County. See Md. Rule 4-201(e); Md. Rule 4-211(c).

That information superceded the earlier statement of charges and charged appellant with first degree assault, use of a handgun in the commission of a crime of violence, use of a handgun in the commission of a felony, false imprisonment, and possession of marijuana. On May 24, 2006, appellant appeared for arraignment in the Circuit Court for Baltimore County. The court explained to appellant, “This is not the trial of your case; it’s an arraignment. I’m supposed to make you understand what you’re charged with and the maximum penalties and advise you with regard to your right to an attorney.” The court then advised appellant: You’re charged with first-degree assault, which carries up to twenty-five years; use of a handgun in a felony, carries ¹¹¹ twenty years with a mandatory minimum of five without parole; use of a handgun in a crime of violence, and that carries twenty-five years without parole; false imprisonment, which carries up to three years; possession of a handgun, one year or $1,000 or both. [1] (Emphasis added.) On June 30, 2006, an attorney with the Public Defender’s Office entered his appearance on appellant’s behalf.

On July 31, 2006, the morning of the trial, defense counsel requested a postponement. In support of his motion, defense counsel informed the court that he had just received notice that the State was seeking a mandatory penalty on first degree assault because appellant was alleged to be a repeat offender. Counsel also explained that he had not yet received the State’s response to his request for discovery, and that appellant “indicated to me that he did not want to postpone it himself.” The court responded that it would grant a postponement, even over appellant’s objection, in order to avoid appellant “complaining that he wasn’t properly represented” via a post-conviction proceeding. Next, the trial court asked “What’s the mandatory?” Both parties agreed that the mandatory penalty for first degree assault for a repeat offender was “ten without parole.” The court then informed appellant, “you’re facing ten years without the possibility of parole.

And they just notified your attorney about that this past Friday. So, he’s asking for a postponement so he can prepare a defense for you. I assume you don’t want to go forward and take the ten without parole, do you?” Appellant responded that he did not, but that he was ready for trial because he had been “incarcerated since March” and was “not involved in this situation.” The trial court responded, “Right. Sir, the State doesn’t agree with that.

The State says you’re guilty and that they want ten without parole. So, I’d suggest you let [defense counsel] look ¹¹² into what your statement is and what’s going on.” The court then granted the postponement. As the court and counsel discussed re-setting the case for trial in 30 to 60 days, appellant repeatedly asked if he had to take the postponement. The court informed him, “No. You can represent yourself if you want.” The parties, the court, and appellant continued to converse, during which the State informed the court that it was ready to proceed to trial.

Appellant responded that he too was ready to proceed to trial, stating that if his attorney was not ready “now[,]” he would “never be ready.” The court responded: “He just got the notice on Friday that you’re facing ten -without parole.” The following colloquy ensued: [APPELLANT]: Well, I didn’t do nothing your honor. So, I figure the court will understand the situation. [THE COURT]: Well, you see, I don’t want you to misunderstand. Because when some judge gives you ten without parole then you’re not going to come back and complain that I didn’t give your attorney time to prepare this case. So, you’re going to have to represent yourself today.

Your attorney is not going to be representing you. You’re going to have to waive your right to an attorney. Do you understand that? [APPELLANT]: Yes sir. [THE COURT]: And you understand that you could get up to twenty-five years in this case? [APPELLANT]: Yes sir. Defense counsel then asked that his appearance be struck and handed appellant a copy of the mandatory penalty notice and the written statement of the charges.

The court struck the appearance of defense counsel and scheduled the case for trial later that afternoon. Later that afternoon, the parties appeared for trial before a different judge. The State’s Attorney informed the court that the State had filed a notice seeking “the statutory ten years, none of which can be suspended[,]” because appellant was a repeat offender. She ad-vised further that appellant was mad ¹¹³ at his public defender because he “had never talked to him and was not prepared to go forward today[.]” Although the prosecutor “tr[ied] to explain to [appellant] that ... it wasn’t [his attorney’s] fault because he didn’t have the paperwork in order to prepare,” appellant “did say that he wanted to go forward today without an attorney.” The trial court asked appellant whether this account was accurate.

Appellant responded that he had done legal research and “figure[d] it doesn’t take a paid lawyer ... to come in and prove myself innocent.” The court then reviewed the charges against appellant: THE COURT: Mr. Brye, you have been charged in this case, styled State of Maryland versus Marvie Edward Brye, with first degree assault, a handgun violation, two counts of a handgun violation, and common law false imprisonment. Now, first degree assault carries a possible jail term of 25 years in jail. Second degree assault is a lesser included offense of that. If you are convicted of second, degree assault, you can be incarcerated up to ten years.

You can be fined $2500. False imprisonment is a charge that doesn’t carry a limit with regard to the amount of jail time you can get if you are found guilty. It’s a common law offense. It’s as long as you are sentenced to a period of incarceration that does not offend the cruel and unusual punishment provision in the Constitution.

It’s a legal sentence. There’s no legal cap you can get on false imprisonment. What is the maximum on handgun violation? [PROSECUTOR]: Five years without possibility of parole. THE COURT: Two counts of that? [PROSECUTOR]: That’s correct.

THE COURT: The handgun charges each carry [] a five-year jail term without the possibility of parole. That’s what you are charged with. It’s important for us to have an understanding reflected on the record of your having an understanding [of] what you are charged with. (Emphasis added.) ¹¹⁴ For more than ten pages of written transcript, the court then informed appellant in detail about the advantages of having an attorney, and that appellant would “continue to have the opportunity to ask for [the] postponement” until “we start putting jurors up here to commence the trial.” Appellant acknowledged these explanations, but twice declined the court’s offers to postpone in order to allow him to “reapply to the Public Defender’s Office or, otherwise, retain the services of a lawyer.” Instead, appellant insisted on going to trial, even after the court again warned repeatedly that, “in about ten .minutes you are going to lose your right to ask for a postponement to get an attorney” and that “[i]t is a big choice that you have made here today to give up your rights under the Sixth Amendment to have an attorney.” The parties then discussed the State’s notice seeking a mandatory ten years, none of which could be suspended, for first degree assault, due to appellant’s alleged status as a repeat offender.

For a final time, the court asked appellant, “[D]o you still wish to go forward representing yourself and giving up the right to ask for a postponement of this case to get an attorney, which postponement will be granted?” Appellant twice affirmed that he wanted to go to trial without an attorney. The court ruled, “I’m satisfied that [appellant] has freely, knowingly, voluntarily, intelligently waived his right to counsel and he’s made an informed and knowing and voluntary decision to give up his right to an attorney. I am satisfied that he wishes to represent himself in this case.” Appellant then asked for dismissal of the charges, stating: “I wasn’t there at the time.” The court denied the motion. The court and the parties discussed the number of peremptory challenges each side was permitted and what witnesses appellant intended to call.

Appellant asked if he could ask a question concerning the charges and the following colloquy occurred: [APPELLANT]: I want to make it clear, I am going to trial for false imprisonment, unlawful use of a handgun and in the commission of a felony or crime or something, but they ¹¹⁵ have me charged false imprisonment, first degree assault, second degree assault, armed robbery. THE COURT: The indictment that was filed which was served on your attorney before today states that you are charged with one count of, I already went through this with you this morning, one count of first degree assault, one count of handgun violation, a second count of the handgun violation and fourth count in the indictment is for false imprisonment. He’s also charged with possession of marijuanashell [sic] that’s correct. THE COURT: Count Five is possession of marijuana].] [0]ne count of first degree assault, maximum sentence 20 years; second count handgun violation, maximum sentence is five years; third count, handgun violation, five years; fourth count, false imprisonment, no limit on the amount of sentence there; fifth count, possession of marijuana, if convicted of that, you can be incarcerated up to one year under the circumstances.

Do you have any questions about any of that? [APPELLANT]: Just to be [clear], I am being charged with assault one, handgun, handgun violation in one and handgun violation in two countshell [sic] one charge is use of a handgun in the commission of a felony, the other is use of a handgun in the commission of a crime of violence. The State will only be proceeding, should we get that far, the State will only be proceeding on one of those counts, the crime of violence, count number two, but it’s obviously not appropriate at this time. THE COURT: Do you have any questions about what you are charged with? [APPELLANT]: No sir. (Emphasis added.) The venire panel was then called into the courtroom.

At the close of the State’s case, the State nol prossed the charges of using a handgun in the commission of a felony and marijuana possession. The jury acquitted appellant of first degree assault, false imprisonment, and using a handgun in the commission of a crime of violence. Appellant was ulti ¹¹⁶ mately convicted on one count of second degree assault, for which he was sentenced to ten years imprisonment. DISCUSSION I. Waiver Of Counsel The right to counsel is guaranteed by the Sixth Amendment to the United States Constitution, applicable to the States through the Fourteenth Amendment, and by Article 21 of the Maryland Declaration of Rights.

See Knox v. State, 404 Md. 76, 86 , 945 A.2d 638 (2008). This right includes the right to be represented by counsel, as well as the corresponding right to proceed without the assistance of counsel. See Gregg v. State, 377 Md. 515, 548 , 833 A.2d 1040 (2003)(citing Faretta v. California, 422 U.S. 806, 819 , 95 S.Ct. 2525, 2533 , 45 L.Ed.2d 562 (1975)). Nevertheless, the Supreme Court has recognized that, “[w]hen an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel.” Faretta, 422 U.S. at 835 , 95 S.Ct. at 2541 ; see Muhammad v. State, 177 Md.App. 188, 241 , 934 A.2d 1059 (2007), cert. denied, 403 Md. 614 , 943 A.2d 1245 (2008).

Consequently, for a waiver of counsel to be effective, “the accused must ‘knowingly and intelligently’ forgo those relinquished benefits.” Faretta, 422 U.S. at 835 , 95 S.Ct. at 2541 (citation omitted). To implement and protect the constitutional right to counsel, the Court of Appeals adopted Md. Rule 4-215. See Parren v. State, 309 Md. 260, 281-82 , 523 A.2d 597 (1987). This Rule establishes the procedure that a court must follow when a defendant expresses a desire to waive counsel and represent himself.

It is designed to ensure that, before allowing the defendant to discharge his counsel, “the court must be satisfied that the defendant is informed of the risks of self-representation, and of the punishments which may be imposed.” Knox, 404 Md. at 87 , 945 A.2d 638 . ¹¹⁷ Subsection (e) of the Rule provides in pertinent part that, “[i]f the court permits the defendant to discharge counsel, it shall comply with subsections (a)(l)-(4) of this Rule if the docket or file does not reflect prior compliance.” In turn, subsection (a) sets forth a list of required advisements: (a) First Appearance in Court Without Counsel.— At the defendant’s first appearance in court without counsel, or when the defendant appears in the District Court without counsel, demands a jury trial, and the record does not disclose prior compliance with this section by a judge, 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.

(Emphasis added.) These advisements “are ‘mandatory and ... must be complied with, irrespective of the gravity of the crime charged, the type of plea entered, or the lack of an affirmative showing of prejudice to the accused,’ ” because the right to counsel is a fundamental right. Broadwater v. State, 401 Md. 175, 182 , 931 A.2d 1098 (2007) (citation omitted). Thus, the Rule “ ‘exists as a ‘checklist’ that a judge must complete before a defendant’s waiver can be considered valid; as such, it mandates strict compliance.’ ” Knox, 404 Md. at 87 , 945 A.2d 638 (quoting Johnson v. State, 355 Md. 420, 426 , 735 A.2d 1003 (1999)). In its most recent advisement case, the Court of Appeals held in Knox that a judge must inform a defendant of any mandatory penalties he faces as a subsequent offender, ¹¹⁸ “and that such notice is required before a court may find that a defendant waives the right to be represented by counsel.” Id. at 78 , 945 A.2d 638 .

The Court concluded that the language requiring advisement of “ ‘allowable penalties, including mandatory penalties, if any,’ as stated in Rule 4-215[ (a)(3)], includes notice of subsequent offender penalties.” Id. at 88 , 945 A.2d 638 . Acknowledging that the rule is ambiguous in that it fails to mention this type of specific sentence enhancement, the Court interpreted the provision in light of its purpose and practical application. See id. at 88-89 , 945 A.2d 638 . A defendant cannot have full understanding of the consequences of the waiver of counsel if the defendant is unaware of the more severe potential penalties because of prior convictions....

It is undisputed that the trial court never advised petitioner of the additional penalties he was exposed to as a result of his subsequent offender status prior to his waiver of counsel. Petitioner was faced with the possibility of twenty years incarceration, with a mandatory minimum of ten years, because of his status as a second-time offender, and he was sentenced to twenty years incarceration. Ten years were with parole limitations based on his subsequent offender status____ A valid waiver of counsel presumes that [the] defendant makes the decision “with eyes wide open.” A defendant may not evaluate the risks of forgoing the assistance of counsel effectively without knowing that there is a mandatory minimum term of imprisonment attached to his potential conviction. The Circuit Court erred when it did not inform defendant of the penalties he was subject to as a result of his subsequent offender status.

Id. at 91-92 , 945 A.2d 638 . Here, appellant argues that the trial court erred in allowing him to discharge his counsel without correctly advising him “of the nature of the charges in the charging document, and the allowable penalties, including mandatory penalties, if any.” In ¹¹⁹ particular, appellant complains that the court: (1) failed to provide any advisement regarding the possession of marijuana charge; (2) failed to correctly advise him of the possible mandatory minimum and enhanced penalties for the handgun charges; and (3) erroneously informed him that he “could get up to twenty-five years in this case[,]” which failed to