Ellison v. State

GETTY, Judge. Plea agreements are tolerated upon the assumption that they play an integral role in conserving judicial manpower and reducing backlogs of pending criminal cases. As we shall see from the present controversy, “it ain’t necessarily so.” Clinton Ellison, appellant herein, advances five reasons why his convictions of murder and underlying felonies should be reversed. The linchpin of his attack upon the trial process, and the single argument presented before us, is the impropriety of the state’s withdrawal from the plea agreement.

If appellant is correct, a trial should not have taken place. We do not insist that the cart was placed before the horse in this case, despite the fact that the issue of the state’s right to disavow the plea agreement was deferred until after the trial on the merits. The non-jury trial, however, lasted ten days; and the jury trial, to determine whether life imprisonment or death was the appropriate disposition, con ⁵⁷¹ sumed an additional eleven days. Had the trial court belatedly held that the plea agreement should have been enforced, twenty-one days of trial time would have been for naught.

Keith Bee, Assistant Manager of the K-Mart store at the Northwest Shopping Plaza in Baltimore, was killed by a shotgun blast to the back of the head on Sunday, October 25, 1981. Bee, accompanied by his three year old son Jason, had gone to the store at approximately 7:30 A.M., to relieve the night maintenance personnel. The police were notified of the robbery at approximately 4:30 P.M. and, upon arrival at the scene, found Jason and two store employees inside the store. Bee’s body was located in one of the aisles in the store.

The gun rack in the store had been broken and shotguns, ammunition, watches, and cash had been taken in the robbery. The office safe had been opened and $7,000.00 in cash and $17,000.00 in checks had also been stolen. Kurt Brooks, testifying under a plea agreement with the state, said that he and his brother, Karl Brooks, participated in the robbery with appellant. Entry was gained by Kurt Brooks accosting Bee with a knife at the front entrance to the store.

Appellant and Karl Brooks came into the store while Bee and his son were forced to lie on the floor. Appellant did not want Bee to see him, because he was a former employee who had been fired by Bee. Bee and his son were taken to the office to open the safe and then taken to the lounge area by Kurt Brooks. A relief man came to the front door and Kurt brought Bee from the lounge to unlock the door and admit the relief man.

At the time, appellant was on the other side of the store. Kurt testified that immediately prior to leaving the premises appellant brought Bee to the front of the store and made him lie face down. At that time appellant shot Bee in the back of the head, stating that he had to kill Bee, because Bee recognized him. Wayne Smith, who did not participate in the robbery, testified that he received a telephone call from Karl Brooks ⁵⁷² at 9:30 A.M. on October 25th requesting Smith to pick him up near the K-Mart store.

When Smith arrived, Karl Brooks, Kurt Brooks and appellant transferred the money bags from their car to Smith’s vehicle. The money was divided at Kurt Brooks’ house and Smith received all of the one dollar bills, amounting to $1,000.00, for his assistance. Over objection, Smith testified that during the time all three of the participants were in his car, Karl Brooks said that it was Kurt’s fault that appellant had to kill Bee, because Kurt “was supposed to be keeping watch on the man.” Appellant remained silent after this statement. John Forbes testified that he and appellant were inmates at the Baltimore City Jail in February, 1982.

Appellant, according to Forbes, admitted to him that he had killed Bee. Karl Brooks was expected to testify pursuant to a plea agreement, but declined by asserting his Fifth Amendment right to remain silent. Appellant admitted his participation in the robbery, but denied the killing which he attributed to Karl Brooks. Maurice Jones testified that he, Lavell Samuel, Lavern Samuel and appellant were watching a television account of the robbery and murder and Jones said: “Clinton offed his boss.” Appellant responded, “Don’t say that because I could get ten years.” PLEA AGREEMENT Under the written plea agreement entered into between appellant and the state on November 20, 1981, appellant would have received a life sentence.

His total sentence resulting from his conviction of murder and underlying felonies is life plus sixty-three years. The agreement provided that appellant would be allowed to enter a plea of guilty to murder in the first degree if four conditions were met, namely: 1. That appellant did not actually shoot Keith Bee. ⁵⁷³ 2. That appellant give a complete and truthful statement concerning the activities of everyone involved in the robbery and murder. 3.

That appellant testify truthfully before the Grand Jury of Baltimore City and in any trial involving the other participants in the crimes committed. 4. That appellant cooperate fully with the State’s Attorney and the Baltimore City Police Department until the completion of the trials arising from this case. The agreement further provided that if appellant breached any of the conditions the agreement might be voided in its entirety at the sole discretion of the state. Extensive negotiations between the state and appellant’s counsel commenced on November 17, 1981, and continued through November 20, when the agreement was signed.

The format involved the state submitting a list of questions to appellant and his counsel, and appellant, after conferring with counsel, would submit his answers in writing. The State’s Attorney and appellant remained in separate rooms; there was no face to face confrontation. The entire procedure covered twenty hours. After the agreement was signed, appellant gave a full written statement and went before the Grand Jury.

The state apparently accepted appellant’s initial denial of being the triggerman, because the state knew that the gloves worn by appellant during the robbery and murder did not contain gunshot powder. This surmise on the state’s part was somewhat shaken when the state learned that the closed weapon involved would not produce powder residue. The agreement was voided by the state by letter dated February 26,1982, wherein the state informed appellant that he lied in statements made pursuant to the agreement and the state believed, contrary to appellant’s statement, that he killed Keith Bee. Justification for the state’s decision to disavow the agreement must be predicated upon what the state learned between November 20, 1981, the date of the agreement, and ⁵⁷⁴ February 26, 1982, the date the state voided the agreement.

Responsibility for the development of the case rested with Assistant State’s Attorney Timothy Doory. He testified to the following discrepancies that led to the state’s decision to void the plea agreement: 1. Appellant minimized his role in the pre-robbery planning. An interview with Michael Muldrow 1 on November 20, after the agreement was signed, indicated that appellant was the principal architect of the contemplated robbery. 2.

Appellant alleged he was never in the area where the body was found. When he was taken to the store, he pointed out the precise location of the body. This area was not visible from the location appellant alleged he was in when the shooting occurred. 3. Appellant claimed he had not touched any of the watches taken in the robbery.

Gold residue was detected on the gloves appellant wore during the robbery. 4. Appellant stated Karl Brooks killed Keith Bee. Wayne Smith, interviewed after the plea bargain, related the conversation in the car wherein Karl stated it was Kurt’s fault appellant had to kill Bee and appellant remained silent. 5. Subsequent to the plea agreement, the state learned from Maurice Jones, Lavell Samuel and Lavern Samuel that the three were watching an account of the K-Mart robbery on television and appellant, who was also present, turned it off.

Jones said, “Clinton offed his boss,” and appellant responded, “Don’t say that because I could get ten years.” 6. The state then interviewed Karl and Kurt Brooks and concluded that they were truthful, and the corrobo ⁵⁷⁵ rated evidence from the various witnesses indicated that appellant did the killing. THE LAW This case is analogous to State v. Brockman, 277 Md. 687 , 357 A.2d 376 (1976), in that the appellant did not plead guilty to any charge, but stood trial as a result of the state’s refusal to carry out the bargain prior to the time appellant was to be afforded the opportunity to confess guilt. In Brockman , the Court of Appeals noted that the standard to be applied to plea negotiations is one of fair play and equity under the facts and circumstances of the case.

The Court held that if the defendant has to a substantial degree and in a proper manner performed his obligations and is willing to fulfill the remainder of his promises, the state shall be held to its bargain. 2 Sweetwine v. State, 42 Md.App. 1 , 398 A.2d 1262 (1979) dealt with the issue of double jeopardy following an aborted plea agreement. The language of the case (Moylan, J.), however, is relevant herein. “May a defendant strike a bargain with the State, repudiate that bargain so far as his obligations under it are concerned and yet retail all of the advantages he ostensibly bargained for? The answer is an immediate and absolute, ‘No.’ Bargaining in bad faith will not be countenanced, let alone rewarded, on either side of the trial table. Appropriate are the words of Cardozo, ‘Justice, though due to the accused, is due to the accuser also ....

We are to keep the balance true.’ Snyder v. Massachusetts, 291 U.S. 97 , 54 S.Ct. 330 , 78 L.Ed. 674 .” ⁵⁷⁶ The government withdrew from a plea agreement in much the same fashion as the state did herein in United States v. Calabrese, 645 F.2d 1379 (10th Cir.1981). The defendant, Knowles, agreed to plead guilty to conspiracy and testify truthfully in the Grand Jury and trial proceedings (concerning racketeering). Before trial the government notified Knowles by letter that the agreement was void due to his refusal to be interviewed by the F.B.I. Following his conviction and sentencing, Knowles moved to vacate the sentence alleging that the government breached the agreement. The Tenth Circuit held that due process rights are involved in plea negotiations and a defendant must be accorded requisite fairness to insure what is reasonably due under the circumstances.

One safeguard is a judicial determination, based on adequate evidence, of a defendant’s breach of a plea bargaining agreement. The question of a breach is not to be unilaterally determined by the government, and the constitutional principles of fairness require that once the government acknowledges the existence of an agreement, the government has the burden of establishing that breach. Appellant herein initiated plea negotiations shortly after he turned himself in to the police. At the time of the agreement, the investigation was ongoing and there is not a scintilla of evidence that the state acted in bad faith.

The discrepancies in appellant’s version of his participation in the robbery and murder were based entirely upon investigation and questioning of witnesses after the agreement was reduced to writing. Appellant received a full evidentiary hearing before Judge Perrott on the issue of whether he lied about his participation in the robbery and murder, and the court held beyond a reasonable doubt that his testimony was not credible. We hold that Judge Perrott’s