Cherry v. State

⁴²⁷ GARRITY, Judge. This matter involves our review of a case wherein the trial court, without objection, proceeded to announce its verdict immediately after denying defense’s motion for judgment of acquittal. The appellant contends that the trial court committed prejudicial error per se in finding her guilty without first affording defense counsel an opportunity to make a closing argument on her behalf. The appellant, Mary E. Cherry, was convicted by the Circuit Court for Baltimore County (Raine, J.) of theft of goods having a value of less than $300.

The trial had proceeded by way of a Statement of Facts. 1 Evidence established that the appellant had been observed entering the Miller Brothers Store in Baltimore County, removing a two-piece dress valued at eighty-eight dollars from a display rack, and concealing that dress in a shopping bag. The appellant was apprehended as she attempted to leave the store with the stolen goods. The record reflects the following colloquy between the court and defense counsel after the prosecution presented the Statement of Facts: MR. DAVIES: No additions, corrections, or modifications, Your Honor.

For the record, move for a judgment of acquittal. THE COURT: Overruled. The verdict is guilty. Tell me about her.

MR. DAVIES: Your Honor, this young lady is now twenty-nine years old and the Court may be aware she may have appeared before this Court in the past, but she does have a history of shoplifting as well as a history of heroin addiction. She has been accepted into Addict Referral Counseling Center on West Twenty-fifth Street, ⁴²⁸ Baltimore, and I have some correspondence that I would like to proffer to the Court____ Upon discovering that the appellant was known by twelve aliases and had an extensive history of shoplifting convictions, the trial judge imposed the maximum period of confinement, eighteen months. The appellant argues that by virtue of this Court’s interpretation in Jones v. State, 55 Md.App. 695 , 466 A.2d 55 (1983) of Spence v. State, 296 Md. 416 , 463 A.2d 808 (1983), the trial judge committed prejudicial error per se.

Such error, the appellant avers, requires reversal, even in the absence of an objection, a motion for mistrial, or some other timely indication that defense counsel wished to make a closing argument. The State argues that because no objection was made, under the holding in Covington v. State, 282 Md. 540 , 386 A.2d 336 (1978), the issue has not been preserved for our review. We believe that the holding in Spence does not apply to the situation at bar, and that the issue has not been preserved. We think that Jones incorrectly interpreted Spence and must be overruled.

In Spence v. State, supra, evidence was presented in a non-jury trial which showed that Spence, after gaining entry into an apartment under pretext, commenced to walk around and pick up items while ignoring requests to leave. Eventually, he wrestled a handgun away from the tenant and fled the scene. Spence testified that he had been drunk on the evening in question, that he had given $80 to a lady to buy drugs, and that he had been looking for her when he went into the apartment in question. Spence denied picking up anything in the apartment and explained that he had been forced to grab the tenant (who in fact eventually managed to train a gun on Spence) to avoid being shot.

At the conclusion of the State’s case, Spence moved for a judgment of acquittal and argued his motion, which was denied. At the conclusion of all the evidence, he renewed his motion and submitted without further argument. The lower court recessed for the day prior to ruling on the ⁴²⁹ motion, which it denied the next day in an oral opinion. After denying the motion, the lower court continued without pause in announcing the verdict convicting Spence of robbery, burglary, assault and theft.

When Spence’s counsel objected to his lack of opportunity for summation prior to the verdicts, the trial judge struck the verdicts and then directed defense counsel to argue the case if he so desired. Defense counsel moved for a mistrial asserting that argument would be a waste of time. Upon the court’s denial of the mistrial motion, defense counsel presented closing argument. At the close of argument, the trial court stated that it had considered counsel’s arguments but would adopt by reference all of its previous comments and findings.

Writing on behalf of the Court in Spence , Judge Cole observed: It is well-settled in this State that the opportunity for summation by defense counsel prior to verdict in a non-jury trial as well as in a jury trial is a basic constitutional right guaranteed by Article 21 of the Maryland Declaration of Rights and the Sixth Amendment to the United States Constitution as applied to the States by the Fourteenth Amendment. We recognized the right in Yopps v. State, 228 Md. 204 , 178 A.2d 879 (1962). In that case the trial judge had entered the verdict at the close of the defendant’s case. Defense counsel brought to the court’s attention that argument had not been permitted.

The trial judge indicated that argument would not change his mind. This Court in reversing the conviction noted that ‘the same constitutional guaranty applicable to a trial by jury [right of a defendant to have counsel make a proper argument] applies with equal force to a trial before a judge sitting without a jury.’ Id. at 208 , [ 178 A.2d 879 ]. The Court also stated that the Constitutional right of a defendant to be heard through counsel necessarily includes his right to have his counsel make a proper argument on the evidence and the applicable law in his favor, however simple, clear, unimpeached, and conclusive the evidence may ⁴³⁰ seem, unless he has waived his right to such argument, or unless the argument is not within the issues in the case, and the trial court has no discretion to deny accused such right. [Id. at 207, 178 A.2d 879 (citations omitted).] Id. 296 Md. at 419 , 463 A.2d 808 . The Court held in Spence that: ... [t]he trial court violated the defendant’s constitutional right to the assistance of counsel when it rendered its verdict before counsel had presented closing argument and that striking the verdict and permitting argument thereafter did not cure the defect.

Counsel was effectively foreclosed from arguing to the factfinder whether the defendant entered the apartment with the intent to burgle, to rob or to steal prior to the judge announcing his decision. Id. at 423 , 463 A.2d 808 . In Jones v. State, supra, the appellant, who had been accused of storehouse breaking, moved for a judgment of acquittal at the conclusion of the State’s case. Rather than merely deny the motion, however, the trial judge found Jones guilty and proceeded to pass sentence.

When counsel pointed out that the defense had not yet presented its testimony, the judge quickly acknowledged his oversight and attempted to remedy the situation. I jumped the gun. I will deny the motion now. You know where I am going anyway.

Maybe you ought to quit while you are ahead. Although Jones offered no additional evidence, defense counsel mounted an argument as to sufficiency. The judge, true to his previously-announced advice, was not persuaded. Reviewing Spence , we adopted the interpretation of that opinion espoused by the three-judge dissent: Today, the Court prescribes an inflexible and absolute rule that, notwithstanding the lack of timely objection, where the trial judge in a non-jury case inadvertently renders a premature verdict, which is later stricken, he is thereafter incapable, in any and all circumstances, of fairly considering closing argument.

(Emphasis added). ⁴³¹ 55 Md.App. at 700 , 466 A.2d 55 , quoting 296 Md. at 438 , 463 A.2d 808 . We now conclude that this was an overbroad reading of Spence. Spence did not establish a per se rule requiring reversal when a court, absent defense