Edwards v. State

Melvin, J., delivered the opinion of the Court. On August 5, 1975, the appellant, Emmett Guy Edwards, was brought to trial in the Criminal Court of Baltimore on a charge of assault arising out of an incident that occurred on December 7, 1974. In addition to the assault charge he had ³⁹⁹ originally been charged with illegally possessing a dangerous and deadly weapon and larceny, also arising out of the December 7 incident. As a result of plea negotiations with the State, appellant offered a plea of guilty to the assault charge in return for the State’s agreement to nol pros the other two charges if the plea would be accepted by the court.

As part of the bargain the State also agreed to make no recommendation as to the sentence to be imposed. The plea was accepted and the appellant was sentenced to 8 years imprisonment. Appellant’s sole contention for reversal is that “the record does not affirmatively show that appellant voluntarily and intelligently waived his privilege against compulsory self-incrimination when he entered his plea of guilty.” Prior to the recent decision of the Court of Appeals in Davis v. State, 278 Md. 103 (1976), we would have had no difficulty in agreeing with this contention, for we had interpreted Boykin v. Alabama, 395 U. S. 238 (1969), as a holding by the Supreme Court that the due process clause of the Fourteenth Amendment requires state trial judges to specifically inform defendants of the essential elements of their privilege against compulsory self-incrimination before accepting their guilty pleas. See English v. State, 16 Md. App. 439 , cert. granted, 268 Md. 748 (1973), cert. dismissed as improvidently granted, July 3, 1973; Williams v. State, 10 Md. App. 570 (1970), cert. denied, 261 Md. 730 (1971); McCall v. State, 9 Md. App. 191 , cert. denied, 258 Md. 729 (1970); Silverberg v. Warden, 7 Md. App. 657 (1969).

In Davis v. State, 28 Md. App. 50, 58 (1975), we modified our prior holdings that strict compliance with Boykin was required, by holding that “substantial compliance” waá sufficient where the “constitutional privilege against self-incrimination has been adequately identified and verbalized in non-technical language”. In Davis, the appellant had been informed that “if you plead not guilty you would not have to take the witness stand in your own defense unless you desired to do so, and if you did not take the stand the prosecuting attorney may not comment or ⁴⁰⁰ make reference to your failure to testify.” Id. at 53. Speaking for this Court, Judge Moore said, at 58: “In the instant appeal, the appellant was advised by the court accepting his plea that (a) he would not have to take the witness stand unless he desired to do so and (b) if he did not take the stand ‘the prosecuting attorney may not comment or make reference to your failure to testify.’ In addition, he was told that at a trial he would be presumed innocent until proven guilty beyond a reasonable doubt. The substantial effect of these latter statements was, we think, the fair equivalent of advice to the appellant that no inference as to his guilt could be made on the basis of his failure to testify.

In other words, we consider that substantial compliance with the requirements of Boykin, as previously interpreted by this Court, was achieved. We do consider it preferable that the trial judge inform the defendant not only that his failure to testify may not be used as a basis for comment against him but also that it may not be used as an inference to be weighed on the issue of guilt. Failure to do so, however, does not constitute reversible error where, as here, the constitutional privilege against self-incrimination has been adequately identified and verbalized in