Covington v. State

Smith, J., delivered the opinion of the Court. Levine, Eldridge and Cole, JJ., dissent and Eldridge, J., filed a dissenting opinion in which Levine and Cole, JJ., concur at page 546 infra. In Covington v. State, 34 Md. App. 454 , 367 A. 2d 974 (1977), the Court of Special Appeals held that appellant, Quenzill Covington (Covington), failed to preserve for appellate review his contention that the trial court denied him an opportunity to make an argument on the issue of whether there was sufficient evidence to warrant his conviction. We agree with the Court of Special Appeals.

The case was argued before all 12 judges of the Court of Special Appeals. Ten judges joined in the court’s opinion. Two other judges filed a concurring opinion asserting that the right was waived. Since the facts are fully set forth in the opinion of that court, we shall relate only such facts as are necessary to a clear understanding of the issue presented.

Covington was charged in the Criminal Court of Baltimore with a number of violations of the narcotics laws. He was convicted on a single count of distribution of heroin upon the basis of an agreed statement of facts which was submitted to the trial court. Chief Judge Gilbert opened his opinion for the Court of Special Appeals by stating: “The plea of not guilty, accompanied by an ‘Agreed Statement of Facts’, is a peculiar animal. As ⁵⁴² was succinctly stated in Barnes v. State, 31 Md. App. 25, 35 , 354 A. 2d 499, 505 (1976), ‘Under an agreed statement of facts both State and the defense agree as to the ultimate facts.

Then the facts are not in dispute, and there can be, by definition, no factual conflict. The trier of fact is not called upon to determine the facts as the agreement is to the truth of the ultimate facts themselves. There is no fact-finding function left to perform. To render judgment, the court simply applies the law to the facts agreed upon.

If there is agreement as to the facts, there is no dispute [.]’ ” Id. at 455. It would follow, however, that it would be incumbent upon a trial judge to determine whether the agreed facts were legally sufficient to convict of the crime charged. The agreed statement of facts was a product of plea negotiations. The trial judge painstakingly questioned Covington, eliciting from him acknowledgment that he was willing to give up his right to testify; that he understood that he could elect to be tried by a jury; that if he had a trial he would have the right to see and hear all of the witnesses and his attorney would have a right to cross-examine these witnesses as Well as the right to stop the State from producing any evidence which would be otherwise inadmissible; that he was giving up his right to testify on his own behalf; and that he was agreeing to the truth of the facts stated.

The trial judge specifically commented: “I will only proceed in this case if the defendant forgoes his right to testify. In other words, he has to agree to the facts and not testify to the contrary. Anything he wants to say in mitigation he can say after and if a guilty finding is made.” ⁵⁴³ After the statement of facts had been presented, the following transpired: “MR. GROSSFELD [prosecutor]: That would be the statement of facts, Your Honor. “THE COURT: Mr. Carey, any additions or corrections to the statement of facts? “MR.

CAREY [defense counsel]: I have advised Mr. Covington that at this time you would hear him as to any additions or corrections and he indicated to me that he has none. Is that correct, Mr. Covington? “THE DEFENDANT: Yes. “THE COURT: All right. Based upon the facts given to me by the State, I find that they are sufficient to find the defendant guilty beyond a reasonable doubt of the first count in indictment number 3214. And, accordingly, I do find him guilty of the charge.” The trial judge then invited counsel and Covington to make any comments they desired before imposition of sentence.

No objection was made. We granted Covington’s petition for certiorari that we might consider his allegation that the trial judge erred in finding him guilty “without first affording him the right to present closing argument.” Maryland Rule 725 f makes Rule 522 applicable to criminal cases. Under Rule 522 a formal exception to a ruling or order of the court is unnecessary, but it is incumbent upon a litigant to make known to the court an objection to the action of the court at the earliest practicable opportunity. See, e.g., Greater Balto.

Con. Mkt. A. v. Duvall, 255 Md. 90, 94 , 256 A. 2d 882 (1969); Fowler v. Benton, 229 Md. 571, 575 , 185 A. 2d 344 (1962); State Roads Commission v. Berry, 208 Md. 461, 466-67 , 118 A. 2d 649 (1955); Banks v. State, 203 Md. 488, 495 , 102 A. 2d 267 (1954); Kennedy v. Crouch, 191 Md. 580, 586 , ⁵⁴⁴ 62 A. 2d 582 (1948); Apple v. State, 190 Md. 661, 667 , 59 A. 2d 509 (1948); Davis v. State, 189 Md. 269, 273 , 55 A. 2d 702 (1947); and Courtney v. State, 187 Md. 1, 4-5 , 48 A. 2d 430 (1946). Under Rule 885 we do “not ordinarily decide any point or question which does not plainly appear by the record to have been tried and decided by the [trial] court----” In Yopps v. State, 228 Md. 204 , 178 A. 2d 879 (1962), a defendant who was offended by the failure of a trial judge to permit argument on his behalf immediately protested to the judge.

It will be seen that no such protest was made here. Covington’s proper remedy is under the Maryland version of the Uniform Post Conviction Procedure Act, Maryland Code (1957, 1976 Repl. Vol., 1977 Cum. Supp.) Art. 27, §§ 645A-645J, originally passed in 1958 with the intent that there be brought together “into one simple statute all the remedies, beyond those that are incident to the usual procedures of trial and review, which are at present available for challenging the validity of a sentence----” State v. D’Onofrio, 221 Md. 20, 29 , 155 A. 2d 643 (1959); Brady v. State, 222 Md. 442, 447 , 160 A. 2d 912 (1960).

We observed in State v. Zimmerman, 261 Md. 11 , 273 A. 2d 156 (1971): “The public and the accused are entitled to speedy administration of justice. Memories fade with the passage of time. Therefore, the quest for truth and justice will best be served by the earliest possible determination of factual questions. For that reason it becomes important that orderly processes for those determinations be established and, once established, that there be adherence to those processes.” Id. at 24 .

In Zimmerman an accused complained when the record did not affirmatively show that he knowingly made an election of a court trial rather than a jury trial, notwithstanding the fact that an election of a court trial had been made by his attorney in his presence. The Court of Special Appeals proposed sending the case back to the trial court for a ⁵⁴⁵ determination as to whether there was a knowing waiver of the right of trial by jury. The record was to be returned to the appellate court after this determination. We pointed to Rule 1085 applicable to the Court of Special Appeals, the counterpart of Rule 885, and said that “[i]f Zimmerman honestly believe[d] that he did not knowingly elect a court trial rather than a jury trial, the avenue [was] open for him through post conviction procedure to air not only that contention but all other contentions relative to any impropriety in the course of that trial.” We said that that “would be in accordance with the established procedures in Maryland and, at the same time, would provide full protection to the rights of Zimmerman.” Covington is not represented on appeal by his trial counsel.

We are unable to read the mind of his trial counsel so as to determine why he did not raise the issue below. There is nothing in this record to indicate that he was in any way prevented from raising the issue at trial in the same manner in which the question was raised in Yopps . At a hearing under the Post Conviction Procedure Act, evidentiary issues may be fully explored. Such exploration would develop whether trial counsel fully understood what was being done and was satisfied with it.

It would be determined, for instance, whether he had advised the trial judge that although he wished to be heard on the sentence to be imposed he did not wish to argue the issue of guilt or innocence. It likewise would be determined whether as a part of the plea bargain the defense conceded the sufficiency of the evidence and desired only to be heard on the sentence. After such full development of the facts surrounding this incident, an appellate court will not be placed in the position of speculating as to whether the complaint might be appellate afterthought. The court will have before it a full record upon which to determine whether the right of closing argument on the facts was denied to Covington, whether he knowingly waived such argument, or whether such argument was waived as a matter of trial tactics.

Our insistence that an appellate court reach its conclusions with full information before it in no way deprives Covington of any rights. We believe it to be by far the sounder ⁵⁴⁶ approach to the administration of justice. Nothing in Squire v. State, 280 Md. 132 , 368 A. 2d 1019 (1977), compels a contrary decision. Judgment affirmed; appellant to pay the costs.

Eldridge, J, dissenting: In my view, the record in this case clearly shows that there was a denial of Covington’s constitutional right to have closing argument made before the rendition of a verdict. The record also shows that there was no waiver of that right. In fact, there was no opportunity for counsel to have waived Covington’s right to have closing argument. Consequently, I would not relegate the matter to a hearing under the Post Conviction Procedure Act.

Instead, I would reverse. Although the majority, as well as the parties, refer to this case as having been tried on an “agreed statement of facts,” the case was actually tried on an agreed statement of the State’s evidence. Moreover, it should be kept in mind that Covington pled not guilty and was given the opportunity by the trial judge to submit additions or corrections to the prosecution’s statement of the evidence. After the prosecuting attorney read a statement of what the State’s principal witness would have testified to, as well as what would have been revealed by certain other evidence, the following colloquy occurred: “PROSECUTING ATTORNEY: That would be the statement of facts, Your Honor. “THE COURT: Mr. [defense attorney], any additions or corrections to the statement of facts? “DEFENSE ATTORNEY: I have advised Mr. Covington that at this time you would hear him as to any additions or corrections and he indicated to me that he has none.

Is that correct, Mr. Covington? “THE DEFENDANT: Yes. “THE COURT: All right. Based upon the facts given ⁵⁴⁷ to me by the State, I find that they are sufficient to find the defendant guilty beyond a reasonable doubt of the first count in indictment number 3214 [distribution of heroin]. I do find him guilty of the charge.” The record thus shows that the trial judge, in the same statement, moved from a discussion with the defendant concerning additions or corrections to the evidence, to a pronouncement of the verdict. There was clearly no opportunity for counsel to have made closing argument.

In affirming the conviction, the majority in the Court of Special Appeals pointed out that the defendant could proceed by way of a post conviction petition under Maryland Code (1957, 1976 Repl. Vol.), Art. 27, § 645A, and indicated that the defendant would be entitled to relief if he could demonstrate “that there was no opportunity for argument by counsel before or after the court announced its verdict.” Covington v. State, 34 Md. App. 454, 466 , 367 A. 2d 974 (1977) (emphasis supplied). Thus, the majority in the Court of Special Appeals believed that a criminal defendant’s right to have closing argument could be satisfied by argument after the verdict. The majority opinion in this Court does not expressly deal with the issue, although it does take the position that Covington’s counsel should have raised the matter after the verdict was rendered.

The matter of a criminal defendant’s right to have his counsel present closing argument was dealt with by this Court in Yopps v. State, 228 Md. 204 , 178 A. 2d 879 (1962). The defendant in that case was being tried by the court on a charge of burglary. He admitted being in the vicinity of the burglarized property but denied any involvement in the crime. In the trial court, at the close of testimony on behalf of the defense, the following occurred ( 228 Md. at 206 ): “DEFENSE ATTORNEY: Step down. “THE COURT: Anything else? “DEFENSE ATTORNEY: That is our case, your Honor. “THE COURT: Any rebuttal? ⁵⁴⁸ “PROSECUTING ATTORNEY: No, your Honor. “THE COURT: The verdict is guilty. * * * “DEFENSE ATTORNEY: You didn’t even ask me for argument in this case to point out the fact that these, that whoever saw these people there never saw them carrying anything back and forth. “THE COURT: It is a question of balancing the testimony of what I heard from these witnesses as against his, who I believe, and perfectly obvious who I must believe under the circumstances. “DEFENSE ATTORNEY: You are not giving the benefit of the doubt. “THE COURT: Wouldn’t change my mind about it. “DEFENSE ATTORNEY: You must have corpus delicti of some kind and the explanation is reasonable. “THE COURT: I don’t think it is----Maybe they will disagree with me upstairs and you have a right to go up there. “DEFENSE ATTORNEY: All right, sir....” This Court, in reversing the conviction in Yopps , stated (id. at 207, emphasis supplied): “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 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.” And later (id. at 208, emphasis supplied): “It is clear to us that the same constitutional guaranty applicable to a trial by a jury applies with ⁵⁴⁹ equal force to a trial before a judge sitting without a jury. “The State relies heavily on the case of People v. Don Carlos (Cal.), 117 P. 2d 748 .

However, that case is distinguishable on the facts from the one at bar. In Don Carlos the record indicated that counsel for the accused had commenced his argument by stating that the evidence failed to sustain the charge. Here, no opportunity was afforded counsel to even begin an argument before the judge’s verdict of guilty.” Yopps stands for the principle, therefore, that the right to counsel includes an opportunity to have counsel make closing argument, no matter how “simple, clear, unimpeached, and conclusive the evidence” may be, before the trier of facts, whether a jury or judge, renders a verdict. See also Rome and Modo v. State, 236 Md. 583, 588 , 204 A. 2d 674 (1964), pointing out that in Yopps “it was held that the denial of an opportunity to argue the case before returning a verdict of guilty was prejudicial to the right of the accused to be represented by counsel throughout the trial.” (Emphasis supplied.) The Court of Special Appeals, in Moore a/k/a Smith v. State, 7 Md. App. 330 , 254 A. 2d 717 (1969), applied the