Hamilton v. State

WILNER, Judge. A jury in the Circuit Court for Prince George’s County found appellant guilty of first degree rape, kidnapping and assault with intent to disable. For those crimes, he was sentenced to life imprisonment. Appellant makes three complaints in this appeal, but we need consider only one — that the court erred in permitting him to testify even though there were indications that he did not fully understand the scope of his right to remain silent.

Since 1876, a defendant in a criminal case has had a statutory right in Maryland to testify in his own defense. See Mayfield v. State, 56 Md.App. 541 , 468 A.2d 400 (1983). That right is now regarded as a Constitutional one. Rock v. Arkansas, 483 U.S. 44 , 107 S.Ct. 2704 , 97 L.Ed.2d 37 (1987).

Antedating that right, however, by 100 years, is the right to refrain from testifying. Since 1776, this State has subscribed to the proposition “[t]hat no man ought to be compelled to give evidence against himself” in a criminal case. Maryland Declaration of Rights (1776), art. 20. That privilege, which has remained consistently a part of our State Constitution (Maryland Declaration of Rights, art. 22), is also, of course, afforded by the Fifth Amendment to the United States Constitution, made applicable in State proceedings through the Fourteenth Amendment.

Those two rights, each of Constitutional dimension, are necessarily in conflict. A defendant must choose between them. If he elects to testify, and thus subject himself to the possibility of self-incrimination through cross-examination, he gives up — waives—his equal but opposite right to refrain from compelled self-incrimination; if, on the other hand, to avoid that prospect, he elects not to testify, he ¹⁴³ obviously gives up — waives—his right to tell from his own lips his side of the story. Precisely because the election of one of these Constitutional rights acts as a waiver of the other, the decision to choose between them is a critical one for the defendant and must therefore reflect, at a minimum, an awareness of these correlative rights and a basic understanding of what each entails.

One of the clear, fundamental attributes of the right to remain silent — not to testify — is that no inference of guilt arises from the exercise of that right, and that, at least on request, the jury would be so instructed. See Md.Cts. & Jud.Proc.Code Ann. § 9-107; Griffin v. California, 380 U.S. 609 , 85 S.Ct. 1229 , 14 L.Ed.2d 106 (1965); Carter v. Kentucky, 450 U.S. 288, 101 S.Ct. 1112 , 67 L.Ed.2d 241 (1981). Although, as we pointed out in Martin v. State, 73 Md.App. 597 , 535 A.2d 951 (1988), there are a number of other factors that a defendant might want to know about and consider in deciding whether to testify, this is one that he must be informed of and hopefully will consider. When a defendant is represented by counsel, the court may generally assume that the defendant has been advised of his rights in this regard and need not, itself, inquire into the matter.

Stevens v. State, 232 Md. 33, 39 , 192 A.2d 73 , cert. denied 375 U.S. 886 , 84 S.Ct. 160 , 11 L.Ed.2d 115 (1963). Only when the defendant is unrepresented by counsel does the court have a positive duty to inform the defendant of his correlative rights, and, even in that setting, the duty is a limited one. As we said in Martin v. State, supra, 73 Md.App. at 603 , 535 A.2d 951 : “If a defendant knowingly and voluntarily elects to ... proceed without counsel, he cannot expect the judge to become his lawyer. Informing him that he has a right not to testify and that no inference of guilt can be drawn if he exercises that right suffices, we think, to ¹⁴⁴ allow him to make an intelligent — if not a wise — decision whether to testify.” (Emphasis added.) The instant case represents a hybrid situation in which (1) the defendant was, in fact, represented by counsel, thereby excusing the court from any duty to advise him, (2) the court decided nonetheless to question the defendant to assure that he actually understood that he had a right not to testify, and (3) the defendant’s answers to the court’s questions raised a clear and considerable doubt whether he really did understand the nature of his privilege and the consequences of exercising it.

It was evident from the beginning that appellant had a limited intellectual and comprehension ability. Before the commencement of trial, counsel asked the court to reopen a suppression hearing to allow appellant’s mother to testify. In that regard, he proffered to the court that “[t]he mother can testify as to his inability to understand what’s going on at that time and at this time____” The court declined to hear from the mother. When it came time for appellant to decide whether to testify, this colloquy occurred: “THE COURT: Mr. Hamilton, has your lawyer told you that you have a constitutional right not to take the stand and testify?

Has he advised you of that? MR. DITRANI [Defense Counsel]: Do you know what the Judge is saying? THE COURT: Just a minute, please.

MR. DITRANÍ: I’m sorry, Your Honor. THE COURT: Has he told you about that you don’t have to take the stand and testify? THE DEFENDANT: Not exactly.

THE COURT: What did he tell you? THE DEFENDANT: What do you mean? THE COURT: What did he tell you about taking the stand? Did he tell you that you had to take the stand or that you didn’t have to take the stand?

What did your lawyer tell you? ¹⁴⁵ THE DEFENDANT: That I probably would be asked to take the stand. THE COURT: All right. Now did he also tell you that you didn’t have to take the stand? THE DEFENDANT: Um-hmm.

THE COURT: He told you that. Okay. Did he advise you that if you didn’t take the stand that this jury couldn’t get any inference of guilt as to whether or not you were guilty because you didn’t take the stand? Did he tell you about that?

THE DEFENDANT: I don’t understand. THE COURT: All right. Do you want to take the stand and tell your side of the story? THE DEFENDANT: Sure.

THE COURT: Do you want to take the stand? THE DEFENDANT: Yes. THE COURT: You understand that you do not have to take the stand and tell your side of the story, but you do want to take the stand, and you fully understand if you take the stand, this lady [the State’s Attorney] can ask you anything she wants to ask you about this particular evening? Do you understand that?

(The Defendant nodded.) THE COURT: You have to say yes. THE DEFENDANT: I’m sorry.” (Emphasis added.) Ignoring counsel’s earlier proffer as to appellant’s limited intellectual capacity, which was confirmed as soon as he began to testify, 1 it is evident, just from this colloquy, that ¹⁴⁶ appellant did not understand that no inference of guilt would arise from his failure to testify and that the jury would be so instructed. That, as we have said, is a critical factor that must be weighed by a defendant and is one of the few things that must be explained by the court, sua sponte, to an unrepresented defendant. Martin v. State, supra, 73 Md.App. 597 , 535 A.2d 951 .

Unfortunately, the court did nothing to allay the uncertainty but moved on to inform appellant that, if he testified, he would be subject to cross-examination. Because appellant was represented by counsel, the State refers us to State v. McKenzie, 17 Md.App. 563, 574 , 303 A.2d 406 (1973), for the proposition that “the voluntary assumption of the witness stand by an accused, to testify in his own defense, is ipso facto, all the waiver that is required of the privilege ... against compulsory self-incrimination.” Building on McKenzie , the State suggests that the presumption that an accused has been apprised of his rights by his attorney is, in effect, irrebuttable, even where the record indicates that he has not been so informed or does not understand what his attorney has told him. We cannot endorse that proposition. It is an unwarranted extension of a case whose own virility has been sapped.

We need to take a fresh look at things. We return first to Stevens v. State, supra, 232 Md. 33 , 192 A.2d 73 . The complaint there was that the record failed to show affirmatively that a defendant, represented by counsel, had been advised by the court of his right not to testify. The Court found no error, stating at 39 of 232 Md., 192 A.2d 73: “Most jurisdictions which have considered the point have held that failure by a trial court to advise a defendant not represented by counsel of his right to refuse to take the witness stand constitutes prejudicial error.

However, we do not deem it essential for the protection of a defen ¹⁴⁷ dant’s constitutional rights that he be advised by the court of his right against self-incrimination when he is represented by counsel. In Woodell v. State, 223 Md. 89, 95 , 162 A.2d 468 (1960), we recognized the fact that attorneys, whether employed by the accused or court appointed, are officers of the court and are presumed to do as the law and their duty require them. Where the accused has counsel, it is to be presumed that the accused has been informed of his rights and that when he voluntarily takes the stand he waives the protection of the