Gilliam v. State

⁶⁴² CHASANOW, Judge. During the early morning hours of Saturday, December 3, 1988, the body of Christine Doerfler (Ms. Doerfler) was found slumped over the wheel of her Nissan Sentra automobile. She had been shot in the back of the head with a sawed-off shotgun. The following facts were adduced at the trial of Appellant, Tyrone D. Gilliam,' Jr. (Gilliam).

On Thursday afternoon, December 1, Gilliam and the Drummond brothers, Kelvin LeGrant Drummond (Kelvin) and Delano Anthony Drummond (Tony), sat in a friend’s apartment and got high on cocaine, marijuana, and alcohol. With them they had a sawed-off Winchester pump shotgun. The three men talked about “what was going to happen, since [they] had the shotgun, and that is when Tony and Tyrone [Gilliam] came up with the idea of going to Harford County.” They discussed their plans for “Friday and like fantasiz[ed] like what [they were] going to do. Tyrone [Gilliam] said that he was going to kill a bitch.” The next day, the threesome drove to Harford County in a Nova they had stolen earlier in the week.

Each was wearing a stolen snowsuit and gloves taken from a sporting goods store Kelvin had recently burglarized. Gilliam carried the sawed-off shotgun inside his snowsuit. After reaching Harford County at about 2:00 p.m., the three men visited a friend’s apartment and “smoked some greens.” 1 At about 6:00 p.m. they left the apartment, and with Kelvin behind the wheel, they drove the Nova to Baltimore County. There they stopped at the entrance of a townhouse development “[b]ecause [they were] planning on robbing somebody.” Kelvin put on the hazard lights of the Nova, feigning trouble, and they waited for a victim.

Meanwhile, that same Friday night at approximately 7:00 p.m., Ms. Doerfler left her home in Baltimore City to make the 20-25 minute drive to her sister Nancy’s townhouse in ⁶⁴³ Baltimore County. At 7:12 p.m. she stopped en route at a nearby Erol’s video store where she checked out a videotape. She may also have made an additional stop at her brother’s house, although this could not be confirmed because he was not home that evening. Still waiting at the entrance of the townhouse complex, the three men watched as a car approached.

This first car was driven by a man. Gilliam and Tony told Kelvin not to follow the car. At about 7:45 p.m., Ms. Doerfler pulled her Nissan Sentra into the parking lot of her sister’s townhouse complex. The men had their victim.

As Ms. Doerfler pulled into a parking spot, Kelvin pulled the Nova in back of her Sentra. Ms. Doerfler was getting out of her car, but had not yet shut her door, when Tyrone and Tony jumped out of the Nova. They pushed their way into her car and forced her to drive down Belair Road while Kelvin followed in the Nova. Because he was not certain of any plan, Kelvin signaled the lead car to join him in the rear lot of a Channel store.

Both cars stopped and Tony got out of Ms. Doerfler’s car to tell Kelvin that “she didn’t have no money” but that she had a Signet bank card. Tony rejoined Gilliam and Ms. Doerfler in the lead car and the two cars continued to drive in tandem to find a Signet Bank. Eventually, they turned into Town and Country at the end of Gum Spring Road in Baltimore County. The cars stopped, and Kelvin pulled the Nova beside Ms. Doerfler’s Sentra.

Tony Drummond then got out of the Sentra and took Ms. Doerfler’s car keys with him. He joined his brother Kelvin in the Nova, leaving Ms. Doerfler alone with Gilliam. The two brothers sat in the Nova talking and waited for Gilliam to join them. Kelvin testified that it was at this point that he looked up and saw Gilliam standing outside Ms. Doerfler’s car on the driver’s side.

Ms. Doerfler was still sitting in the driver’s seat. Kelvin could see Gilliam standing with one arm on the hood of Ms. Doerfler’s car, ⁶⁴⁴ leaning down talking to her. In his other hand he held the shotgun, grasping it in the center on the pump area, his arm fully extended down. Kelvin then turned to his brother Tony for a cigarette.

He testified: “That is when I lit my cigarette up. That is when I heard this loud bang. You could see the flash. When I turned around, I couldn’t see the girl.

I could just see her hair and the coat. She was like face first into the steering wheel.” Gilliam quickly rejoined the brothers in the Nova and the three drove off, leaving Ms. Doerfler at the dead-end of Gum Spring Road. Kelvin asked Gilliam why he did it and Gilliam answered, “because she saw [my] face.” They had stolen three dollars. A few days later on December 5, 1988, at about 3:15 a.m., Trooper Gary D. Kulick of the Maryland State Police was on patrol in Harford County when he received a broadcast over his radio that an “incident” 2 had occurred near his patrol.

He was told to look out for two cars driving on Route 40. Minutes later, Trooper Kulick spotted the cars — a gold, four-door, Toyota Camry followed by a Dodge Cólt. The vehicles drove in tandem at a distance of about two to three car lengths and traveled at a speed of 50 m.p.h. in a posted 55 m.p.h. zone. Trooper Kulick positioned his cruiser so that the approaching cars would not see him.

He then received another broadcast which gave the license tag number of the Colt. He radioed the police barrack that he had spotted the cars and asked for back-up. Deputy Buchannan of the Harford County Sheriff’s Department came to his assistance. The Deputy signaled the Toyota Camry to pull off the road, which it did, and Kelvin Drummond was arrested. ⁶⁴⁵ The Toyota, however, which Trooper Kulick attempted to stop, sped away.

A high-speed pursuit ensued, reaching speeds of over 100 m.p.h. The chase ended only when the Toyota, unable to pass a pick-up truck, spun around and hit the median retainer wall head-on. The driver, bleeding from the forehead, was Gilliam. Gilliam was arrested and his car searched.

The search netted a loaded, sawed-off shotgun lodged between the front door and the driver’s seat of the car. The shotgun had three shells in it. At about 3:50 a.m., Trooper Kulick left the accident scene with Gilliam and took him to the Fallston General Hospital emergency room. Gilliam received treatment 3 and was visited by his mother.

He was released from the hospital at 6:10 a.m. Gilliam was taken to the Maryland State Police Barracks in Bel Air, Maryland, where he was directed to a holding cell. More than 12 hours after his arrest, at approximately 4:45 p.m., Gilliam was removed from his holding cell and walked 30 to 40 feet into an interview room where he was questioned by Corporal Ryan and Detective Naylor of the Baltimore County Police Department. Although Gilliam at first denied committing the murder, he ultimately confessed after being confronted with statements Kelvin Drummond had made to police.

Gilliam made both oral and tape recorded confessions. Gilliam was then charged with murder, robbery with a deadly weapon, kidnapping, and use of a handgun in the commission of a crime of violence. Pursuant to Maryland Code (1957, 1987 Repl.Vol., 1989 Cum.Supp.), Article 27, § 412(b), the State timely notified Gilliam that if a conviction of first-degree murder was returned, it would seek the ⁶⁴⁶ death penalty. 4 Kelvin Drummond was also indicted and pleaded guilty to first degree murder of Christine Doerfler. However, Kelvin Drummond made an agreement with the State that, if he testified for the State at Gilliam’s trial, the State would recommend that Kelvin receive a sentence no more severe than life with the possibility of parole.

The Circuit Court for Baltimore County held a hearing on June 5, 1989, to consider Gilliam’s motion to suppress his statements to police. The motion was denied. Presiding without a jury, the Circuit Court for Baltimore County (Fader, J.) conducted a trial on the merits on June 5-7,1989. The State’s case against Gilliam consisted, of three elements: The testimony of Kelvin Drummond; Gilliam’s high-speed flight from police in a car containing a sawed-off shotgun; and Gilliam’s statements madé to police after he was brought into the police barracks.

The trial court found Gilliam guilty of murder in the first degree (on theories of both premeditated murder and felony murder), guilty of robbery with a deadly weapon, guilty of kidnapping, and guilty of use of a handgun in the commission of a crime of violence. The trial judge conducted a hearing on June 23, 1989 to determine whether Gilliam elected to be sentenced by the court or by a jury. Gilliam elected to be sentenced by the court. On October 30-31, 1989, Judge Fader, sitting without a jury, found that Gilliam was a principal in the first degree of the murder of Christine Doerfler and, as an aggravating factor, found that the murder was committed during the course of a kidnapping, Md.Code (1957, 1987 Repl.Vol.), Art. 27, § 413(d)(4), and robbery, Art. 27, § 413(d)(10).

The court found no mitigating factors. Gilliam was sentenced to death. In his appeal to this Court pursuant to Md.Code ⁶⁴⁷ (1957, 1987 Repl.Vol.), Art. 27, § 414, Gilliam raises seven issues for our determination. FIRST-LEVEL FACTUAL FINDINGS AND MOTION TO SUPPRESS The first issue raised by Gilliam in this appeal concerns the admissibility of statements he made to police during the interrogation after his arrest.

Gilliam contends that the trial court erroneously failed to articulate the first-level factual findings underlying its determination that his statements were voluntary. According to Gilliam, the trial court’s failure to make these findings constitutes reversible error. In his brief Gilliam cites Lodowski v. State, 307 Md. 233 , 513 A.2d 299 (1986) (Lodowski II) for the proposition that “a trial judge in ruling upon a motion to suppress a statement must resolve factual disputes not only for its own purposes, but also so as to permit an appellate court to engage in an independent constitutional review of the matter.” While this may be an accurate statement of one of the holdings in Lodowski II, id. at 252-54, 513 A.2d at 310 , Gilliam nonetheless has failed to bring to our attention any “factual disputes” raised at the suppression hearing. Quoting Jackson v. Denno, 378 U.S. 368, 391 , 84 S.Ct. 1774, 1789 , 12 L.Ed.2d 908, 924 (1964), this Court distinguished the situation in Lodowski from cases such as the instant one by stating: “[t]his is not a case where the facts concerning the circumstances surrounding the confession are undisputed and the task is only to judge the voluntariness of the confession based upon the clearly established facts and in accordance with proper constitutional standards.” Lodowski II, 307 Md. at 252 , 513 A.2d at 309 .

In Lodowski II, we noted numerous conflicts in the evidence, such as whether a waiver was signed on June 17 at 10:19 p.m. as police indicated or not until June 18 at 12:30 p.m. as Lodowski maintained. The evidence differed as to ⁶⁴⁸ what Lodowski and his mother were told regarding Lodowski’s status as a suspect or witness, and his need for an attorney. In addition, due to the length of the interrogation, which extended from 10:15 p.m. June 17 until shortly after 6:00 a.m. the next morning, it was disputed whether Lodowski was capable of freely and knowingly waiving his rights due to a “sleep deprivation state.” Id. at 253 , 513 A.2d at 310 .

The trial judge made only one factual finding in Lodowski II — that Lodowski did not at any time request a lawyer. In this appeal, Gilliam would have us find reversible error because the trial court did not make factual determinations about whether Gilliam understood the Miranda 5 warnings he received — particularly that he could cease interrogation once it had begun; whether Gilliam understood that he had a right to prompt presentment; 6 the amount and effect of the controlled substances Gilliam had ingested over the previous weekend; the effect of the head injury sustained during the car chase; and Gilliam’s overall state of mind at the time he made the statements to police. However, Gilliam failed to raise these issues at the suppression hearing. Limited evidence was presented at the suppression hearing, and the facts were undisputed.

Unlike Lodowski II, the evidence presented here did not require articulated factual determinations in order for an appellate court to conduct an independent constitutional appraisal. See McIntyre v. State, 309 Md. 607, 623-25 , 526 A.2d 30, 37-39 (1987). The hearing began with Corporal Joseph Ryan of the Maryland State Police, who was on duty at the state police barracks in Bel Air when Gilliam was brought in. Called by ⁶⁴⁹ the State, Corporal Ryan testified that Gilliam was brought into the barracks on December 5, 1988, at approximately 6:30 a.m. and that: “he was handcuffed to the rear; he was under the direction of TFC Kulick, and ... had some type of head injury to his forehead.

TFC Kulick directed him to a holding cell at the Barrack, at which time Mr. Gilliam followed those instructions to walk to the cell. He had to walk approximately 30, 40 feet to get to the cell, also to make a turn around a hallway to get into the cell and he did this under his own power.” Ryan further stated that Gilliam made no complaints about his head injury throughout the day. At about 2:30 p.m., Gilliam requested some food. The food was brought to him at about 3:05 p.m.

Gilliam was taken from his cell at 4:45 p.m. and walked approximately 30 feet to the interview room. The record shows that Gilliam had no trouble reading the Miranda warnings form aloud. Corporal Ryan stated that Gilliam was coherent and responsive, and that “he appeared to understand everything that was being said to him.” After being asked whether he understood each right, Gilliam was asked to place his initials next to the Miranda right he was waiving. He initialed all of his Miranda rights.

The interrogating officers had no reason to believe that Gilliam lacked the ability to fully comprehend the Miranda warnings and voluntarily elect to give a statement. Nothing in Gilliam’s testimony contradicted the testimony of Corporal Ryan. Gilliam did claim on direct examination, however, that he did not remember Corporal Ryan from the interrogation. Yet on cross-examination, he stated that he remembered speaking with Detective Naylor, the Baltimore County police officer who conducted the interrogation with Corporal Ryan.

This at least demonstrates that he remembers being interrogated. Gilliam also claimed that he did not understand his Miranda rights. He testified, “in a way I understood and in a ⁶⁵⁰ way I didn’t.” He explained that the only thing that he did not understand was that he could terminate the interview at any time. But when discussing the Miranda form he admitted: “I wasn’t really paying attention to it when I was reading it.

I was just reading it because they told me I had to read. I just wanted to get it over with.” He stated that he signed the Miranda waiver, as well as the waiver of prompt presentment, because he “became impatient with the officers” and was feeling “uncomfortable.” Gilliam’s voluntary inattentiveness does not undermine his decision to waive his Miranda rights. More importantly, Gilliam failed to raise at the hearing the possibility that his statements to police were made as a result of his drug use over the weekend. He says only that he felt “paranoid.” But even if Gilliam had argued that his waiver was involuntarily given due to prior drug use, we would point out here, as we have in a preMiranda decision, that as long as a statement is freely and voluntarily given at a time when the accused understands what he is saying, the fact that the accused may be under the influence of narcotics does not necessarily make the statement inadmissible.

Bryant v. State, 229 Md. 531, 536 , 185 A.2d 190, 192-93 (1962). The same would be true for any effects caused by the laceration on his forehead. See Hadder v. State, 238 Md. 341, 357 , 209 A.2d 70, 79 (1965) (physical injury does not affect admissibility as long as the disclosure is freely and voluntarily made at a time when the accused knows and understands what he is saying). Lodowski II makes it clear that “[t]he standard under which traditional voluntariness is to be measured is whether, under the totality of all of the attendant circumstances, the statement was given freely and voluntarily.” Lodowski II, 307 Md. at 254 , 513 A.2d at 310 .

Here, the trial judge was required only to determine whether the statements were voluntary under the facts. Gilliam did not offer and we find no evidence to support a contention that ⁶⁵¹ he was incapable of understanding what was being said to him or understanding what he told police. Perhaps the strongest indication of this is the hospital report. Gilliam was seen by a physician and other trained medical personnel directly after the car chase.

The hospital report indicated that Gilliam was calm, not agitated, his speech clear, and that there was no alcohol on his breath. The report strongly suggests that Gilliam was capable of understanding what was going on around him shortly after his arrest. He then spent the next twelve hours in his cell, presumably drug-free, and was only then interrogated. On direct examination, Gilliam complained of nothing more serious than an “uncomfortable” feeling during the interrogation.

Under the circumstances, we would be more surprised by a lack of discomfort. We find no error here. ELECTION TO REMAIN SILENT BOTH AT TRIAL AND AT SENTENCING Gilliam next contends that he was affirmatively misadvised about his right to testify or to remain silent both at the trial and at the sentencing hearing, and that the court was required to, but did not, take corrective action. According to Gilliam, the court’s failure in this regard was reversible error.

The relevant proceedings at trial were as follows: “MR. DANEMAN [Defense Attorney]: Stand up, Mr. Gilliam. If Your Honor please, at this time I would most respectfully like to advise my client of his right to testify or right to remain silent. At this juncture of the case, the State having rested and the court having ruled on our motions, we have the privilege of going forth with testimony.

You have the right to testify, sir. You have the right to remain silent. If you elect to remain silent, no inferences will be drawn from your refusal to testify. That means that this honorable court will not infer, nor will the court find you guilty if you elect to remain silent; do you understand that?” (Emphasis added.) ⁶⁵² Counsel for Gilliam argues that Gilliam was told that he would not be found guilty if he elected to remain silent, and because this assertion was not reversed or negated by the trial judge, Gilliam may have been under the misapprehension that if he remained silent, and did not testify, the court would not find him guilty.

Gilliam maintains that it was incumbent upon the trial judge to step in, correct any possible misapprehension, and ascertain whether Gilliam truly understood his options. Similarly, Gilliam claims that he did not knowingly and intelligently waive his right to testify at the sentencing hearing. In that proceeding, defense counsel told Gilliam on the record that: “At this juncture, sir, you have the right to testify or you have the right to remain silent. If you elect to remain silent, no inference of guilt may be drawn from your refusal to testify.

That means that His Honor would not find you guilty or infer that you are guilty because you would like to remain silent; do you understand that?” (Emphasis added.) Gilliam would have us believe that he interpreted this explanation of his right to testify or to remain silent “to mean that the court had not made a final determination as to his guilt,” or that “if he elected to remain silent that the court could not consider the fact of his guilt in imposing sentence.” In Stevens v. State, 232 Md. 33 , 192 A.2d 73 , cert, denied 375 U.S. 886 , 84 S.Ct. 160 , 11 L.Ed.2d 115 (1963), this Court considered whether a defendant must be advised by the court of his right to elect not to testify. We held that where the accused has counsel, it should be presumed that he has been informed of his rights. Id. at 39, 192 A.2d at 77 . In Fowler v. State, 237 Md. 508, 515 , 206 A.2d 802, 806 (1965), this presumption remained undisturbed where the Court found “nothing in [the] record to indicate that the accused was not fully informed of his rights by counsel.” Thus, only where it becomes clear to the trial court that the defendant does not understand the significance of his elec ⁶⁵³ tion not to testify or the inferences to be drawn therefrom and where the presumption is rebutted must the court advise the accused of his right to testify or to remain silent.

Defense counsel’s on-the-record explanation to Gilliam concerning his right to testify or to remain silent at trial is replete with references to previous discussions between defense counsel and his client, as well as his client’s family, on the significance of the election not to testify. Indeed, defense counsel stated during the litany, “MR. DANEMAN [Defense Attorney]: If you elect to testify, sir, you will be subject to cross-examination by the Assistant State’s Attorney, the Court has a right to ask you questions and you must answer all questions truthfully, do you understand that? THE DEFENDANT: Yes sir.

MR. DANEMAN: In addition, any prior record that you have involving crimes of moral turpitude could possibly be brought out for the purposes of impeaching your credibility or your believability as a witness; do you understand that? THE DEFENDANT: Yes sir. MR.

DANEMAN: Now, we have discussed this many, many times, is that correct? THE DEFENDANT: Yes, sir. MR. DANEMAN: I discussed it with you yesterday, we discussed it today.

I discussed it with your mother, your family seated behind you, that’s correct? THE DEFENDANT: Yes, sir. MR. DANEMAN: Are you prepared to make an intelligent decision now as to whether or not you wish to testify or whether you wish to remain silent?

THE DEFENDANT: Yes. MR. DANEMAN: What is your election, sir? THE DEFENDANT: I wish to remain silent.

MR. DANEMAN: Is that a free and voluntary decision? THE DEFENDANT: Yes, sir. ⁶⁵⁴ MR. DANEMAN: Has anybody, including myself, threatened you, harassed you, or induced you or told you not to testify?

THE DEFENDANT: No, sir. MR. DANEMAN: We have reviewed this in depth, have we not? . THE DEFENDANT: Yes, sir..

MR. DANEMAN: Discussed the pros and cons of your testifying or not testifying, is that correct? THE DEFENDANT: Yes, sir. MR.

DANEMAN: And we have discussed at length what possible benefits could be attained by your testifying, is that correct? THE DEFENDANT: Yes, sir. MR. DANEMAN: And we weighed that agáinst the negative factors that could be developed if you testified, is that correct?

THE DEFENDANT: Yes, sir. MR. DANEMAN: Do you feel that you have had ample time to review this decision; do you think you have had ample time to discuss this with me, with your family? THE DEFENDANT: Yes, sir.

MR. DANEMAN: And you still wish to remain silent? THE DEFENDANT: Yes, sir. MR.

DANEMAN: The defendant requests the right to remain silent.” Similarly at the sentencing hearing, defense counsel established on the record, that he had repeatedly discussed with Gilliam the right to testify or to remain silent when he stated: ’ “MR. DANEMAN: ... We have discussed this many times, last Thursday, today, but it is a decision that you must make. I cannot make it for you; do you understand that?

THE DEFENDANT: Yes. ⁶⁵⁵ MR. DANEMAN: I know you discussed this with your mother because she was in my office when you called me Thursday night; you know that? THE DEFENDANT: Yes. MR.

DANEMAN: Now, I asked you to reflect then and I ask you to reflect now. It is a major decision. Do you wish to testify or do you wish to remain silent? THE DEFENDANT: I wish to remain silent.

MR. DANEMAN: That is your free and voluntary wish? THE DEFENDANT: Yes. MR.

DANEMAN: No one, including myself, or anyone in court has threatened, harassed you, induced you to remain silent? THE DEFENDANT: No. MR. DANEMAN: How long have you thought about whether or not you wanted to testify or not? THE DEFENDANT: I have thought about it for a while.

MR. DANEMAN: And you think you have had ample time to reflect on the pros and cons of testifying? THE DEFENDANT: Yes. MR.

DANEMAN: And that is your final decision? THE DEFENDANT: Yes. MR. DANEMAN: You don’t want to discuss it with your mother at any greater length?

THE DEFENDANT: No. MR. DANEMAN: Defense rests.” The record thereafter reflects that Gilliam was told, “If you elect to remain silent, no inference of guilt may be drawn from your refusal to testify. That means that His Honor would not find you guilty or infer that you are guilty because you would like to remain silent____” We assume during the discussions alluded to in the on-the-record litany between Gilliam and his defense counsel, in the absence of any indication to the contrary, that defense counsel correctly informed Gilliam about the significance of his election not to testify both at trial and at ⁶⁵⁶ sentencing. The record does not support the highly unlikely inference that either Gilliam or his attorney actually believed that an election to remain silent at trial mandated acquittal, or that an election to remain silent at sentencing meant either that the court had not yet made a final determination as to his guilt or that the court could not consider the fact of his guilt when imposing sentence.

The trial court was, therefore, not required to advise Gilliam of his right to remain silent at trial or at sentencing. Defense counsel’s colloquies with Gilliam “on the record” explaining the right to remain silent and the choices to be made was a formality not required by any decision of this Court. During these gratuitous colloquies, Gilliam admitted that the election to testify or not testify had previously been reviewed “in depth,” that he had considered and weighed the “possible benefits” against the “negative factors,” and had further discussed the election with his family, as well as with his attorney. The record supports the conclusion that Gilliam fully understood the consequences of his election not to testify.

There is no reason to conclude, and we do not conclude, that as the result of the ambiguous statement in the lengthy dialogue by defense counsel Gilliam believed that if he elected not to testify at trial he must be found not guilty, and that when that did not occur, if he elected not to testify at his sentencing hearing, he could not be sentenced to death. Where there is no indication that the defendant has a misperception of his right to remain silent and the effect of exercising that right, and where he expressly indicates he has been fully advised of and understands the right, as well as the effect of a waiver, then an ambiguous statement made by defense counsel during an “on the record” explanation does not result in reversible error if the trial court fails to intervene and clarify counsel’s ambiguous statement. WAIVER OF JURY TRIAL Again Gilliam contends that a potential ambiguity within the on-the-record litany is grounds for reversible ⁶⁵⁷ error. Gilliam asserts that his election to be tried by the court without a jury was not a knowing and intelligent election.

Preceding his election, the court advised Gilliam on the record about his right to be tried before a jury, or alternatively before the court without a jury. Gilliam argues that the court’s advice was sufficiently ambiguous to have led him to believe that if he chose to be tried by a jury during the guilt/innocence phase of the trial and was convicted of murder in the first degree, then during the sentencing phase of the trial, he would automatically be sentenced by the same jury and precluded from being sentenced by a judge. The relevant portion of the proceedings is as follows: “THE COURT: Sir, I want to give some advice of rights with regard to your right at this time to be tried before a jury or before the Court without a jury. At any time you don’t understand any of these things that I’m explaining to you, please feel free to stop me and ask me to explain them in a different manner or to repeat them again.

At any time that you want to confer with Mr. Daneman, you feel free to just stop me and also confer with him. Do you understand that, sir? THE DEFENDANT: Yes, sir. THE COURT: First of all, I want to tell you that a jury is 12 citizens selected at random from the voting rolls of Baltimore County.

They would sit in that jury box over there and listen to the evidence in the case. You and your attorney, Mr. Daneman, could help participate in the selection of that jury. The jury could not convict you unless all 12 of them, an unanimous verdict, 12 to nothing, were convinced that you were guilty beyond a reasonable doubt and to a moral certainty. That goes with regard to the conviction or the guilt/innocence stage of this trial, do you understand that?

THE DEFENDANT: Yes, sir. THE COURT: You may also select a jury with regard to the sentencing phase of the trial if it gets to that. Now, ⁶⁵⁸ the Court, first of all, or the jury is going to listen to the evidence presented in this case and determine first of all if you are guilty of anything or what you are guilty of. And after the Court would determine that you would be guilty of murder, kidnapping, robbery with a dangerous and deadly weapon, or robbery, if a determination of guilt is made, then we go into the second phase of the trial.

Of course, if you are found not guilty of any of those crimes, then that verdict disposes of the case and there is no sentencing portion of the case. Do you understand that, sir? THE DEFENDANT: Yes, sir. THE COURT: Now, throughout this explanation I’m going to have to make an assumption and I’m making it just for the sake of being able to advise you correctly and not because I believe that you are guilty, because frankly, sir, at this time I don’t know much about the facts and circumstances of the case.

All I know is what I have read as I have read the Court file and what has been told me this morning as a result of questioning and cross-examination that has occurred. So far, that constitutes very little. But you are entitled with regard to both of these phases to elect a jury trial if you so desire and you may elect your jury trial or may