Gregory v. State

²⁴ HOLLANDER, J. Donald Ray Gregory, appellant, was charged with attempted felony theft and attempted unlawful taking of a motor vehicle. At his jury trial in the Circuit Court for Wicomico County, he claimed that he did not intend to steal the vehicle, and took it because he mistakenly believed that he was God. The jury convicted appellant of both offenses. 1 On appeal, Gregory presents the following questions for our review: I. Did the trial court err in failing to properly advise the appellant about his right not to testify?

II

Did the trial court err in allowing appellant to be impeached with his prior convictions for robbery and theft when appellant was on trial for attempted theft?

III

Did the trial court err in failing to give the jury instruction on mistake of fact?

IV

Was the evidence sufficient to sustain the convictions for attempted unlawful taking of a motor vehicle and attempted theft over $500? Finding no error, we shall affirm the judgments of the circuit court. FACTUAL SUMMARY The following evidence was adduced at the trial in November 2007. On May 17, 2007, Brenda Huffman lived on Laurel Road in Mardela Springs and owned a 2004 Hummer H2 truck.

She testified that, on that date, she went out with her mother, and the two returned to her home at approximately 3:35 p.m. At that time, she saw an unfamiliar truck in her front driveway, which was running. In her rear driveway, where her 2004 ²⁵ Hummer H2 was parked, Huffman discovered appellant sitting in the driver’s seat, with “his hands ... in the floorboard area.” At trial, she identified appellant as the individual she observed on the driver’s side of her vehicle. When Huffman asked appellant “what he was doing,” appellant exited the Hummer and told Huffman that he “needed to take the truck.” Huffman asked appellant “what was wrong[,]” because he “just didn’t seem right and he kept saying he was in distress.” Appellant replied “that God told him [that] he could take the truck.” After appellant told Huffman that “he wasn’t going to leave without the truck[,]” Huffman called the police.

Huffman had left the Hummer unlocked, although the keys to the Hummer were not in the vehicle. She examined the interior of the vehicle and saw “wiring hanging” underneath the dashboard of the Hummer. These wires were not hanging down before appellant entered her vehicle. Huffman purchased the Hummer for $49,000.

Joyce Caudill, Huffman’s mother, testified that she drove her daughter home on May 17, 2007. Upon arriving, they saw a man in her daughter’s truck. Ms. Caudill identified appellant as the man. Ms. Caudill and her daughter approached appellant and asked him what he was doing.

Appellant told them that “God had told him to take the truck,” and he could not leave without it. While inside of the truck, appellant was leaning toward the floorboard of the vehicle. Ms. Caudill told appellant to get out of the truck and he complied. Trooper Richard Lee Hagel, Jr. of the Maryland State Police, responded to Huffman’s home at approximately 3:59 p.m.

He saw appellant “standing approximately [twenty] feet behind the Hummer[.]” Appellant’s vehicle, a 1991 or 1992 Blazer, was parked at the end of the driveway, and it was running. Appellant, who was cooperative, told the trooper that he was driving by and ... heard a voice inside his truck that told him [that] he had to take the Hummer. So he stopped, pulled into the driveway, and attempted to take the ²⁶ Hummer. He said that the voice he had heard in his truck, he believed there was a device in his truck that allowed ...

God to speak to him. The defense moved for judgment of acquittal. As to the charge of motor vehicle theft, appellant’s attorney argued that “the State has not shown that the Defendant’s actions were knowing and willful____” The court denied the motion. Appellant was the sole witness for the defense.

We quote from his direct examination: [DEFENSE COUNSEL]: [0]n May 17th at any time during the day were you in Mardela ... ? [APPELLANT]: At Brenda Huffman’s place, the place where I was arrested, that’s where I was but I had been there well before the police was called, possibly an hour or two hours before the police was called. [DEFENSE COUNSEL]: When did you arrive there? [APPELLANT]: [Approximately [fifty] minutes to an hour before her daughter’s school bus arrived. ■ [DEFENSE COUNSEL]: And what were you doing there? [APPELLANT]: I was having vehicle trouble. My intention was to pull in her driveway, [make a] three point turn [and] head back to where I just came from[.] [DEFENSE COUNSEL]: Well, after you pulled into her driveway, what happened? [APPELLANT]: My truck—well, when I went to slow down to pull into her driveway, there was an issue about this truck coming to a stop.... So I came in at a speed more than enough to slow down and I buckled into their driveway____So I got in there and I heard this sound, which I hadn’t heard before, as if something snapped----And I hit like it went in gear ... but the tires just spun.... ²⁷ So I was just at this house and I seen the driveway facing, there’s a house right there, I see a Hummer truck[.] ... ... I’m just sitting there, I’m thinking about this Hummer, I’m looking at the Hummer, I’m looking at the truck, I’m like[,] well[,] I keep going through so much stuff with my truck, I keep having to get it fixed every now and then[.] So I said well, I’ll keep going through the stuff.

So it told me that this Hummer truck, ... once the voice said that, it told me that, said this Hummer, the only thing in the yard said this Hummer, it said, told me the Hummer was mine. [DEFENSE COUNSEL]: The voice told you to take the Hummer? Did you know whose voice it was? [APPELLANT]: ... I actually thought that my truck was communicating with me---- Anyhow, I got that telepathy, it was telepathed to me that message there that this Hummer was mine---- And so anyway, ... I’m looking at the Hummer.

I opened the door.... I did not get inside of it. And then I closed the door. And I was headed back to my truck. [A]t that exact time, ... the school bus was coming up.

And it was a girl, I suppose she was about [eleven] or [thirteen] years old[.] And ... what I said to the little girl, I said listen. I said I am God and my truck knows that I am God. I said my truck will not leave your yard. I said that I want your family to let me have this Hummer....

And she said, well, you want me to get my dad. I said, yeah. And she was off. And she went to the house.

And so I expected that her father was ... going to come outside---- ... I didn’t immediately go into the Hummer. I waited out there [for] three minutes, five minutes, ... I’m looking at this Hummer because now I’m confident that I’m going to get this Hummer because also even if it was about ²⁸ money, I could afford the Hummer.

And so I’m looking at the green paint and ... the wheels ... and I seen that the windows are tinted. So I was like, well, she’s going to tell him ... I’m out here about this truck, so I’m going [to] look inside the truck. So I’m like[,] they know I’m here, ... so I opened the door.

And I sat in the driver’s seat____ And from my left I could see a black Dodge Nitro ... coming up[J And ... I saw it was two ladies____I got out of the truck [and] went straight to them____I told them, exactly what I said, I have an emergency, I need this Hummer, ... I said I need this truck, and I am God. And she said something, that’s all good you have an emergency, she said, but what are you doing in my truck.

And I said listen, I don’t want [you to] tell anybody, I said I’m God____ [DEFENSE COUNSEL]: Did you intend to steal the Hummer? [APPELLANT]: No. I wasn’t even thinking about the Hummer at all until it was mentioned. Once I had got in that yard and that voice put that thought in my head about the Hummer, which it told me that it’s mine, which I believe everything is mine anyway because I truly believe that I am God, but I know the world don’t have to agree with that, ... so I try to live and make it throughout the world not causing trouble. So until they put that in my mind, I wasn’t going to take their Hummer, I was going to let her know ... the secret, listen, I do believe I am God and I actually told her I am. During the State’s cross-examination of appellant, the following colloquy occurred: [THE PROSECUTOR]: So the voice told you to take the truck? [APPELLANT]: No, the voice didn’t tell me to do anything, the voice spoke to me, just posed it out there, just threw it in my head that the Hummer is yours, it’s yours, and my truck broke down at the same time it tells me that. ²⁹ [THE PROSECUTOR]: Is the truck titled in your name? [APPELLANT]: So are you asking me do I believe that, of course, I knew I didn’t have ownership of the Hummer. [THE PROSECUTOR]: The truck wasn’t yours and you knew it wasn’t yours? [APPELLANT]: Excuse me, my intention was to make the Hummer mine by getting it from this family.

We shall include additional facts in our discussion. DISCUSSION The first contention concerns the advisement appellant received as to his rights to testify or remain silent. We pause to review additional facts. Following the close of the State’s case, the following colloquy occurred: [DEFENSE COUNSEL]: [Appellant], as I have explained to you in the back there a few moments ago, the State has rested [its] case.

This is now your case and you will have the opportunity to testify or decline to testify, as I explained to you. If you elect to testify, you must do so under oath from the witness stand right up there as you’ve seen the other witnesses do, and you will be subject to cross-examination, that is the State’s Attorney may ask you questions and the Court, if [it] chooses to, may also ask you questions. You are not required to testify, you have the right to testify. If you decline [to] testify, the Court will make no inference and will instruct the [jury], if you request, to make no inference of your refusal to testify as to your guilt or innocence.

Do you understand your right to testify? [APPELLANT]: I do not decline to testify. [DEFENSE COUNSEL]: Do you wish to testify? [APPELLANT]: I wish to testify. [DEFENSE COUNSEL]: He wishes to testify. ³⁰ THE COURT: The only other thing and maybe [defense counsel] told you this, [appellant], is that if you have a criminal history which contains what are known as impeachable offenses, then perhaps the State can ask you questions about those or bring it to the jury’s attention, do you understand that? Subject to various restrictions. [DEFENSE COUNSEL]: Essentially if the State wishes to, [it] could ask you about your prior criminal record, okay. To indicate to the jury that a person with a criminal record like this shouldn’t be believed, would be [an] attack upon your credibility. Prior to the State being able to do that, the Court must essentially hold a hearing and do a balancing test as to whether or not those instances would be more prejudicial than illuminating to the jury.

But it’s a possibility that the State could ask you about your prior record, yes. Do you still wish to testify? [APPELLANT]: Ido. Thereafter, as noted, appellant testified in his own defense. Appellant challenges the advisement by the court and defense counsel, characterizing it as “facially erroneous.” In particular, he complains that the “court and defense counsel’s on-the-record advice of rights ... was not accurate as to what prior convictions could be used to impeach” him if he elected “to take the stand.” He asserts: [T]here can be no question that not every felony conviction can be used to impeach a criminal defendant. [2] Notwithstanding that fact, the appellant in this case was led to believe that his criminal history and criminal record could be used to impeach him if he chose to testify.

Additionally, neither the trial court nor defense counsel informed appellant that the conviction could not be more than fifteen years old. Md. Rule 5-609(b). ³¹ “As a result of defense counsel’s incomplete advice,” claims appellant, he “lacked sufficient legal information necessary to make a knowing and intelligent decision whether to testify.” See Martin v. State, 73 Md.App. 597, 601-02 , 535 A.2d 951 (1988) (a defendant “ ‘cannot be charged with a waiver of the [right not to testify] unless [the defendant] voluntarily and intelligently elected to refrain from asserting it’ ” quoting People v. Chlebowy, 191 Misc. 768 , 78 N.Y.S.2d 596, 600 (1948)). According to appellant, the court “was put on clear notice that [appellant] was not sufficiently informed (by his lawyer) of the constitutional rights that he was deciding whether to exercise or waive,” and therefore “the court had a sua sponte duty to intervene to assure that he was properly informed about his rights.” In appellant’s view, the “court committed reversible error [by] failing to intervene [and] accurately ... explain his constitutional right [to testify] or to instruct defense counsel to do so[.]” See Tilghman v. State, 117 Md.App. 542, 564 , 701 A.2d 847 (1997) (stating that “if it is ... manifest to the court that [a] defendant is deciding whether to testify on the basis of erroneous legal advice that will render his decision unknowing and involuntary, the court must take action to assure that the defendant is correctly advised”), cert. denied, 349 Md. 104 , 707 A.2d 90 (1998). 3 The State counters that, because appellant “raised no objection below to the ... court’s advisement, ... he should not be heard to complain now.” See Rule 8-131(a). 4 Even if the ³² claim is preserved, the State contends that the court’s advice was not “incomplete” and “defense [counsel’s] advice to [appellant] was not inherently, overtly, or facially erroneous.” Moreover, the State insists that there is no evidence “that the court was on notice that [appellant] did not understand his rights” or that appellant “relied” on defense counsel’s advice, to his detriment, “in deciding whether to testify.” Thus, the State maintains that the court did not err in failing to intervene and correct defense counsel’s advice. Assuming, arguendo, that appellant’s contention is preserved, we conclude that the court did not err in advising appellant as to his testimonial rights.

We explain. “The Fifth, Sixth, and Fourteenth Amendments to the United States Constitution guarantee the accused in a criminal case the right to testify on his own behalf.” Tilghman, 117 Md.App. at 553 , 701 A.2d 847 (citing Rock v. Arkansas, 483 U.S. 44, 52 , 107 S.Ct. 2704 , 97 L.Ed.2d 37 (1987)). Because the right to testify is essential to due process in a fair adversary system, it may only be waived knowingly and intelligently, pursuant to the waiver standards established for fundamental constitutional rights in Johnson v. Zerbst, 304 U.S. 458 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1938). See Rock, 483 U.S. at 51 , 107 S.Ct. 2704 ; Faretta v. California, 422 U.S. 806 , 819-20 n. 15, 95 S.Ct. 2525 , 45 L.Ed.2d 562 (1975). “The privilege against self-incrimination is guaranteed under both Article 22 of the Maryland Declaration of Rights,[] and the Fifth Amendment to the United States Constitution, which is made applicable to the States through the Fourteenth Amendment^ ]” Smith v. State, 394 Md. 184, 210 , 905 A.2d 315 (2006); see also Gray v. State, 368 Md. 529, 549-50 , 796 A.2d 697 (2002); Bhagwat v. State, 338 Md. 263, 270-71 , 658 A.2d 244 (1995). No adverse inference can be drawn against a defendant who elects to exercise this privilege.

See Md.Code (2006 Repl.Vol., 2009 Supp.) § 9-107 of the Courts and Judicial Proceedings Article; Carter v. Kentucky, 450 U.S. 288 , 101 S.Ct. 1112 , 67 L.Ed.2d 241 (1981). As ³³ the Court of Appeals explained in Morales v. State, 325 Md. 330, 335-36 , 600 A.2d 851 (1992): The decision whether or not to testify is a significant one and must be made with a basic appreciation of what the choice entails. If a defendant elects to remain silent, he or she waives the constitutional right to testify on his or her own behalf. Conversely, if a defendant testifies, he or she waives the constitutional right to remain silent.

If a defendant is represented by counsel, however, a rebuttable presumption arises that counsel has fully advised his client of the right to testify or remain silent. Thanos v. State, 330 Md. 77, 91-92 , 622 A.2d 727 (1993); accord Oken v. State, 327 Md. 628, 639 , 612 A.2d 258 (1992), cert. denied, 507 U.S. 931 , 113 S.Ct. 1312 , 122 L.Ed.2d 700 (1993); Hamilton v. State, 79 Md.App. 140, 150 , 555 A.2d 1089 , cert. denied, 316 Md. 550 , 560 A.2d 1118 (1989). Moreover, there is no provision that requires that the waiver be obtained in any particular form, that it be placed on the record, or that it be done in open court. See Tilghman, 117 Md.App. at 555 n. 5, 701 A.2d 847 .

In Tilghman , this Court said: In the trial of a pro se criminal defendant, the court must advise the defendant of his constitutional rights to testify and to remain silent, so that he may make an informed choice to invoke one right and waive the other. When the defendant is represented by counsel, no such requirement exists. On the contrary, Maryland law recognizes a presumption, premised on the permitted inference that attorneys, as officers of the court, “do as the law and their duty require them,” that a represented defendant has been told of his constitutional rights, by his attorney. Thus, even though the right to testify must be waived by the defendant personally, the trial court is entitled to assume that counsel has properly advised the defendant about that right and the correlative right to remain silent and, if the defendant does not testify, that he has effectively waived his right to do so.[] Id. at 554-55 , 701 A.2d 847 (citations omitted).

Notably, the Tilghman Court also said, id. at 557 , 701 A.2d 847 : ³⁴ It is not necessary that a defendant be told of the potential for impeachment with prior convictions for his decision whether to testify to be made knowingly and intelligently. Martin v. State, 73 Md.App. 597 , 535 A.2d 951 (1988) (Wilner, J.). The risk of impeachment is not a “fundamental attribute” of the right to testify, knowledge of which is essential to an understanding of the right itself. Hamilton [v. State, 79 Md.App.] at 143, 555 A.2d 1089 .

Rather, it is a potential consequence of exercising the right to testify that is of largely strategic, not essential, import. See also Morales, 325 Md. at 337-39 , 600 A.2d 851 (while a trial judge is not required to inform the defendant of the risk of impeachment by prior convictions, a judge who decides to do so must provide accurate advice). With respect to a defendant’s testimonial decision, Maryland Rule 5-609 is relevant. It states, in part: Rule 5-609.

Impeachment by evidence of conviction of crime. (a) Generally. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during examination of the witness, but only if (1) the crime was an infamous crime or other crime relevant to the witness’s credibility and (2) the court determines that the probative value of admitting this evidence outweighs the danger of unfair prejudice to the witness or the objecting party. (b) Time limit.

Evidence of a conviction is not admissible under this Rule if a period of more than 15 years has elapsed since the date of the conviction____ Thanos, supra, 330 Md. 77 , 622 A.2d 727 , is instructive as to whether the court below erred by failing to correct defense counsel’s advice to appellant regarding his right to testify. Charged with first degree murder and related offenses, Thanos was advised by his counsel that, if he elected to testify, he would be subject to cross-examination by the prosecutor, who “could inquire into any prior convictions” that Thanos had. ³⁵ Id. at 81, 90 , 622 A.2d 727 (emphasis in original). Thanos subsequently waived his right to testify. Id. at 90 , 622 A.2d 727 .

After he was convicted, Thanos contended on appeal that, because “he had several prior convictions which, for various reasons, were not admissible for impeachment purposes,” his counsel’s “advice was incorrect[.]” Id. at 82, 90 , 622 A.2d 727 . Moreover, claiming that he relied on that “incorrect advice,” Thanos argued that “he did not knowingly and intelligently waive his right to testify[.]” Id. at 90-91 , 622 A.2d 727 . Affirming Thanos’s convictions, the Court of Appeals stated: In Gilliam v. State, 320 Md. 637 , 579 A.2d 744 (1990), [cert. denied, 498 U.S. 1110 , 111 S.Ct. 1024 , 112 L.Ed.2d 1106 (1991),] we reaffirmed a long-standing rule that criminal defendants represented by counsel are presumed to have been informed of their constitutional rights, including the right to testify. Thus, trial judges have no affirmative duty to inform represented defendants of their right to testify except “where it becomes clear to the trial court that the defendant does not understand the significance of his election not to testify or the inferences to be drawn therefrom. ...” [Id.] at 652-53, 579 A.2d 744 .

We held further that an ambiguity in an on-the-record colloquy between the defendant and his counsel concerning the right to testify will not necessarily undermine a knowing and intelligent waiver of that right: 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 [that] 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. Id., Id., 320 Md. at 656 , 579 A.2d 744 .... ³⁶ Gilliam controls the instant case. The record gives no hint that counsel’s questionable advice influenced Thanos’s decision not to testify. Before the trial began, Thanos stated on the record that he had no intention to testify.

He confirmed to the court at that point that he had discussed with counsel his right to testify and desire to forego that right. Defense counsel subsequently indicated no fewer than three times that the