Covington v. State

Menchine, J., concurring: I disagree with the route taken by the majority to affirmance of the judgment below, but concur in that result. I am persuaded that a due respect for the course followed by this Court in Moore v. State, 7 Md. App. 330 , 254 A. 2d 717 (1969), coupled with the manifest propriety of the conduct of the trial in the lower court, combine to justify us in reaching and rejecting appellant’s substantive contention on appeal. We should not, under the circumstances of this case, utilize Maryland Rule 1085 as a basis for affirmance. Maryland Rule 1085, applicable to this Court, is essentially identical 1 to Maryland Rule 885, applicable to the Court of Appeals of Maryland.

In Walters v. State, 242 Md. 235 , 218 A. 2d 678 (1966), Judge Barnes, after pointing out .that three issues on appeal were not raised below and thus were not properly before the Court, went on to say at 238 [681]: “As these issues might be raised in a post ⁴⁶⁷ conviction proceeding, we will dispose of them now in anticipation of a possible later collateral attack on the conviction.” We should follow precisely such a course here. Instead, we have chosen to repudiate the procedural action taken by us in Moore v. State, supra, without guidance to a post conviction tribunal as to Moore’s substantive impact, if any, upon the subject case. Appellant contends: “The court below erred in finding Appellant guilty without first affording Appellant the right to argue the merits of his case.” I think his case had no merits to argue save for mitigation of punishment, the accused having waived his right to argument by counsel upon the issue of guilt or innocence. Both counsel and accused were accorded the right to speak in mitigation.

Appellant’s reliance upon Herring v. New York, 422 U. S. 853 , 45 L.Ed.2d 593 , 95 S. Ct. 2550 (1975); Yopps v. State, 228 Md. 204 , 178 A. 2d 879 (1962); and Moore v. State, supra, is misplaced. There is no necessity to retreat in any respect from the holdings in that trilogy of cases. It is plain that the subject case is beyond the range of their impact. Herring, Yopps and Moore , all supra, in unison imperatively declare that argument of counsel is a fundamental arrow in the full quiver of rights conferred by the Sixth Amendment’s assurance of the assistance of counsel.

This is not to say, however, that the accused may not withdraw this fundamental arrow from its quiver and waive its use. A common thread running through this trilogy of cases is the existence in each of disputed facts requiring resolution by the trier of facts. See Herring, supra, at 856 [597] [2552]; Yopps, supra, at 206 [880]; and Moore, supra, at 331 [718], A second common thread running through all three is clear recognition of the right of the trial judge to restrict argument to the issues of the particular case. In Herring, supra, it was said: “The presiding judge must be and is given ⁴⁶⁸ great latitude in controlling the duration and limiting the scope of closing summations.” (Emphasis added.) 422 U. S. at 862 , 45 L.Ed.2d at 600 , 95 S. Ct. at 2555 .

In Yopps, supra, it was said: “The constitutional right of a defendant to be heard through counsel 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 of the case. ...” (Emphasis