Datcher v. State

Moylan, J., delivered the opinion of the Court. The Appellant, Herbert Datcher, was convicted in the Criminal Court of Baltimore of Daytime Housebreaking. Upon this appeal, he raises five contentions: 1) that he was convicted of a crime with which he had not been charged; 2) that he did not effectively waive his right to trial by jury; 3) that he was denied the effective assistance of counsel; 4) that he was denied the right to confront the witnesses against him; and 5) that he was erroneously ordered to make restitution. The Use and Abuse of Language The Appellant’s first contention deals with a very specific problem but it illuminates a wider field of troubles as we deal with the myriad complaints raised by those who lose at the trial level — the opportunistic tendency, generally long after the fact, to seize upon a slip of the tongue or an informal usage and to treat it as something chiseled in granite.

The deputy clerk who made the docket entries in this case recorded the Appellant as having been convicted of Housebreaking in violation of Art. 27, Sect. 30. The Appellant, on the other hand, strenuously contends that he was convicted of Breaking and Entering in contravention of Art. 27, Sect. 31A. The question arises of whether they both attended the same trial. The Appellant, along with his brother Rufus as a ⁵⁸³ codefendant, went to trial before Judge Hilary Caplan on a four-count indictment.

Those counts were, respectively: 1) Daytime Housebreaking, 2) Roguery and Vagabondage, 3) Larceny, and 4) Receiving Stolen Goods. Everything in this case took place within the limited context of that four-count indictment. Meaning must be derived from the context in which words are used as well as from the naked words themselves. Within the clear context of this trial, the evidence was legally sufficient to convict the Appellant on the greatest count — Daytime Housebreaking — and Judge Caplan so convicted him.

Judge Caplan thoroughly summed up the evidence and correctly assessed the trial contest as one of competing credibilities. He found a key State’s witness to be credible and he found the Appellant to be unworthy of belief. He concluded his rendering of the verdict with the following words: “For that reason I find the defendants, both of them, guilty of the charge of breaking and entering.” Upon so insubstantial a foundation, the Appellant erects the argument that he was convicted of a crime with which he was never charged. He contrasts Daytime Housebreaking under Section 30 (b) with Breaking and Entering under Section 31A and asserts that the conviction must have been for the latter.

We note at the outset that no exception was taken when the verdict was rendered nor any clarification called for. There is, therefore, nothing before us for appellate review. Green v. State, 23 Md. App. 680, 685 ; Maryland Rule 1085. In this case, however, we do not hesitate to address the merits (or palpable lack thereof) in the hope of foreclosing future, deliberate distortions of meaning.

Reading the clear and unambiguous rendering of the verdict in full context, we decline to credit a strained and hypertechnical interpretation which would be a rank absurdity. We take judicial notice of ⁵⁸⁴ the fact that the word “burglary” and the phrase “breaking and entering” are both used frequently, by trained lawyers and jurists as well as by laymen, as generic and sometimes interchangeable terms to refer to the whole family of burglary-related offenses, as well as to individual species within that broad genus. The phrase “breaking and entering” was unquestionably used in that off-hand fashion in this case and it was used for the clear and unambiguous purpose of designating the first count (which is part of the “breaking and entering” or “burglary” family), in contradistinction to those counts charging Roguery and Vagabondage, Larceny and Receiving Stolen Goods (which are not of that family). We cannot conceive of any intelligent listener or reader giving any other meaning to so clearly communicated a message.

Identification need only be specific rather than generic when one is distinguishing between species rather than between genera. The process of justice is ill-served when disappointed litigants hang critically on every spontaneous word as if it had bubbled from the Earth at Delphi. The Maryland Rule of Constitutional Waiver Plus Rulemakers frequently suffer a chronic affection for catechisms and for the spreading of catechisms upon the record in the benevolent hope that once everyone has reduced every jot and tittle to unflagging memory and dutiful execution, litigation will be wondrously diminished. The paradox is that, at least in the intermediate range, the device which was intended to deliver us from litigation, instead cranks out seemingly endless litigation.

Thus has it been with Maryland Rule 735. The pertinent part thereof for present purposes is 735 d: “If the defendant elects to be tried by the court, the trial of the case on its merits before the court may not proceed until the court determines, after inquiry of the defendant on the record, that the defendant has made his election for a court trial with ⁵⁸⁵ full knowledge of his right to a jury trial and that he has knowingly and voluntarily waived the right. If the court determines otherwise, it shall give the defendant another election pursuant to this Rule.” We first came to grips with Rule 735 d in October, 1978, with Biddle v. State, 40 Md. App. 399 , 392 A. 2d 100 . Since March, 1979, we have engaged it on nine additional published occasions: Butler v. State, 41 Md. App. 677 , 398 A. 2d 514 ; Countess v. State, 41 Md. App. 649 , 398 A. 2d 806 ; McCoy v. State, 41 Md. App. 667 , 398 A. 2d 1244 ; Fairbanks v. State, 42 Md. App. 15 , 398 A. 2d 814 (1979); Tucker v. State, 42 Md. App. 103 , 399 A.2d 931 (1979); Jones v. State, 42 Md. App. 209 , 400 A. 2d 1 (1979); Harris v. State, 42 Md. App. 248 , 400 A. 2d 6 (1979); Watkins v. State, 42 Md. App. 349, 400 A. 2d 464 (1979) and Fisher v. State, 42 Md. App. 515, 400 A. 2d 1159 (1979).

In the course of holding that there was noncompliance with Rule 735 on six of these now ten occasions and that there was compliance on four others, we have reduced a wide field of initial doubt by bracketing the critical target area with reasonably pinpoint precision. Aids to construction are now at hand. As Judge Thompson pointed out in Harris v. State, supra, “The obvious purpose of this in-court inquiry is to show affirmatively on the record that the defendant’s constitutional right to a jury trial was voluntarily and knowingly waived.” In Fairbanks v. State, supra, Judge Lowe looked, by way of analogy, to Davis v. State, 278 Md. 103, 107-108 , and concluded that the satisfaction of Rule 735 does not require “that a precise rubric or litany must be followed to effect a waiver of a constitutional right, such as the right to trial by jury.” 398 A. 2d at 817. He reasoned that substantial compliance is the ultimate requirement and that “[cjommon sense is the criterion.” These guiding principles have found expression in the growing body of case law.

In Harris v. State, supra, Judge Thompson probed “the required scope and extent of the section d inquiry.” In Biddle ⁵⁸⁶ v. State, supra, we struck down the court trial election because “the record was devoid of any indication that the defendant knew of his right to a jury trial or participated in the election of a court trial. It merely showed that defense counsel requested a court trial at the arraignment, in the defendant’s presence.” Harris v. State. The failing in Biddle was twofold. In the first place, there was no showing on the record, by direct inquiry of the defendant (by court or counsel) or by indirect representation by counsel, that the election of trial mode was actually made or acquiesced in by the defendant personally.

In the second place, even assuming a personal election by the defendant, there was no showing, by direct inquiry of the defendant or by representation by counsel, that the election of a court trial was made with knowledge of the alternative right to a jury trial. In Butler v. State, supra, we also held that there was noncompliance with Rule 735. A dimension was added by way of implication. In Butler , the only thing that transpired before the Circuit Court was the following representation by counsel: “. . .

His case originally was a jury trial prayed in the District Court. Since that time Mr. Butler has waived his right to have this case tried before a jury. So we’re here today, non-jury trial, enter a plea of not guilty.” (Emphasis supplied) The court made no further inquiry but proceeded immediately to trial. The analysis of Judge Wilner for this Court attached significance to the fact that Butler had earlier elected a jury trial when he was first before the District Court.

We stressed the fact that the District Court record did not show 1) “whether the election of a jury trial was made by him or by his counsel,” 2) whether Butler “personally was in court” when the jury trial was prayed, 3) whether “the District Court inform[ed Butler] of his right to trial by jury,” and 4) “what information, if any, was actually conveyed to [Butler] with respect to his right to a jury trial when the matter came before the District Court.” The implication of this discussion is that if there had been spread upon the record in the Circuit ⁵⁸⁷ Court evidence that upon an earlier occasion in the District Court the defendant had been fully informed of his right to trial by jury, that earlier knowledge would be deemed to remain with the defendant and would demonstrate that his later election of a court trial was, indeed, an informed and knowledgeable election. Our decision in Butler hinged, in part, upon the failure of the record to show such earlier knowledge: “Neither is there any indication in the record that the court knew what had transpired in the District Court. Accordingly, there was no basis upon which it could have reasonably concluded that appellant had full knowledge of his right to a jury trial and that he was knowingly and voluntarily waiving that right.” In Tucker v. State, supra, there was no even colorable compliance with Rule 735 d. Two written elections for a court trial had been filed but there was no inquiry upon the record of any sort (of anybody) to determine whether the election was “with full knowledge of his right to a jury trial” or that the defendant had “knowingly and voluntarily waived the right.” In Harris v. State itself, the critical failure of compliance was that “the court did not address the appellant and the appellant was given no opportunity to speak.” To be sure, Judge Thompson had earlier stressed: “First, it is not necessary that the entire inquiry always be conducted on a person to person basis between the judge and the defendant.

Statements by counsel in which the defendant has clearly acquiesced may be sufficient.” In Harris , however, there was “no basis in this record for concluding that appellant acquiesced in any on the record explanation by counsel, as in McCoy, supra, or that he affirmed the sort of recital shown in Fairbanks, supra.” Whether the inquiry of the defendant be direct or indirect, the rule indubitably requires that some inquiry be made “of the defendant.” ⁵⁸⁸ Our holding of noncompliance with Rule 735 d in Watkins v. State, supra, dealt with a situation virtually on all fours with Biddle . The election of a court trial was made by defense counsel. There was no inquiry of any sort as to 1) whether the election was that of the defendant himself or 2) even if so, whether it was made with knowledge of the right to trial by jury. Our most recent holding of noncompliance was in Fisher v. State, supra.

The critical phrase from Rule 735 d in that case was “with full knowledge of his right to a jury trial.” Judge Lowe summed up our earlier case law pointing out that it is not “necessary to spell out the various aspects of a jury trial, such as the fact that all jurors must be convinced beyond a reasonable doubt before he can be convicted. It is sufficient that the record affirmatively indicates that the defendant knew that a jury trial