Harris v. State

MURPHY, Chief Justice. On February 24, 1982, Jackie Kevin Harris entered pleas of guilty in the Circuit Court for Baltimore County to murder in the first degree, two counts of armed robbery, and a handgun violation. The court accepted the pleas and adjudged Harris guilty on all counts. Harris waived his right to be sentenced by a jury, and on April 5, 1982, the trial judge imposed the death penalty for the first degree murder, and consecutive sentences of imprisonment totaling 20 years for the remaining offenses.

On Harris’s initial appeal, we affirmed the convictions, but vacated the death sentence on the ground that Harris’s waiver of a jury at his sentencing had not been made knowingly and voluntarily. See Harris v. State, 295 Md. ³⁴⁸ 329 , 455 A.2d 979 (1983) (Harris I). Before his second sentencing proceeding, Harris moved under former Md.Rule 731 f 1 to withdraw his guilty pleas, alleging that the pleas had been entered without the effective assistance of counsel. 1 The court denied the motion, and a new sentencing proceeding was conducted before a jury. On July 22, 1983, Harris was again sentenced to death.

We subsequently vacated the court’s denial of Harris’s motion to withdraw his guilty pleas, and remanded the case for a hearing on Harris’s claim of ineffective assistance of counsel. See Harris v. State, 299 Md. 511 , 474 A.2d 890 (1984) (Harris II On remand, the court conducted a plenary hearing and concluded that Harris had received effective assistance of counsel, as guaranteed by the Sixth and Fourteenth Amendments to the Constitution of the United States. 2 The court, therefore, again denied Harris’s motion to withdraw his guilty pleas. In Harris v. State, 303 Md. 685 , 496 A.2d 1074 (1985) (Harris III), we affirmed the order denying Harris’s motion, and retained the case on our docket to review the death sentence, as required by Maryland Code (1957, 1982 Repl.Vol.), Article 27, § 414(a). 3 The parties have submitted supplemental briefs, as we directed in Harris III. We have considered the issues raised by Harris challenging the legality of the death sen ³⁴⁹ tence imposed upon him.

We conclude that his sentence of death again must be vacated, and the case remanded for resentencing, because Harris is correct in his contention that he was denied his right of allocution. I. Before selection of the sentencing jury, defense counsel informed the trial judge that Harris had chosen not to testify but wanted to “present allocution as ... in any normal sentencing proceeding____ It is my belief that that is his right____” The court reserved its ruling on the issue until later in the proceeding. Following jury selection, the parties again addressed the issue of allocution. Defense counsel reiterated that Harris desired to allocute before the jury prior to closing arguments.

The State argued that, if Harris elected to allocute, defense counsel would be precluded by § 413(c)(2) from presenting a summation or closing argument because the statute provided in the disjunctive that “[t]he State and the defendant or his counsel may present argument for or against the sentence of death.” (Emphasis added.) The State asserted that allocution was nothing more than a form of argument within the contemplation of this statute. In response, the defense counsel stated that “[m]y argument to the jury on the facts does not constitute allocution by the Defendant. He does not wish to take the stand. He does not wish to testify.

He wishes to make a plea for his life to the jury____ “It’s not going to be a second jury argument, Your Honor. It is going to actually be the equivalent of what any defendant says after his counsel has put on evidence and made the argument to stand up and say to the judge, I’m sorry, ... so the judge can get an impression of his demeanor even though he chooses not to testify under oath for whatever reason, which is his option. ³⁵⁰ “That is what we wish to do. As I pointed out, it’s absolutely required under the law---- ****** "... My client is not articulate enough to stand up there for an hour [or] two and plead for his life and integrate the facts.

He shouldn’t be required to do that, but at the same time he wants the opportunity to simply say, I’m sorry. Don’t kill me.” Defense counsel then conferred with Harris, and indicated to the court that the following proffer contained the substance of what Harris would say during allocution before the jury: “That it is difficult for him to stand in front of them. He’s not good with words or to tell them what he means, but that he’s sorry for his involvement in the offense, particularly so for the fact that the man died and for the grief that his family has suffered. “He wishes there was some way that it could be otherwise. That he would ask them to consider ... sparing his life and allowing him to live and receive a life sentence.” After hearing further argument by both parties, the court ruled as follows: “I believe that ...

Article 27 Section 413 gives to the Defendant the right to address the jury but further gives to the Defendant the right to give up that right to have Counsel address the jury. The wording of the statute says ... the Defendant or Counsel. The decision is the Defendant’s whether he shall address the jury or whether [Counsel] shall address the jury, and that is for the two of you to decide, and at the appropriate time you can make that election, but it will not be that both of you shall address the jury.” After both parties’ submission of evidence, but before closing arguments, defense counsel again addressed the court: ³⁵¹ “[A]t this point ..., I would resubmit to the Court that my client wishes to allocute. He does not wish to waive the right to have me argue to the jury.

He in fact does, and faced with that Hobson’s choice, if you will, of either or, we’ll submit to the Court’s ruling and have me argue. “We do maintain as we have maintained consistently that he has an absolute right to allocute in addition to his attorney. We have already put on the record the extent of allocution. “... [W]e would ask Your Honor to reconsider at this point and allow my client to allocute. “THE COURT: Just like any other sentencing proceeding, the Defendant has a right of allocution. The Defendant may elect to exercise that right and present himself through himself to the sentencing authority, the jury in this case or a judge in another case. “This statute particularly and specifically grants the Defendant that right, but it further states in the statute ... that he can delegate that [right] to his Counsel. This Court is not depriving Mr. Harris of his right to address the jury.

He may do so. If he elects to do so, [Counsel] may not argue, also. “He may however waive his right to allocute personally and appoint [Counsel] to do that. He has made that decision.” (A) Section 413(c)(2) In Booth v. State, 306 Md. 172 , 507 A.2d 1098 (1986), we explained the distinction between allocution and closing argument in the context of a capital sentencing proceeding. Although both contain unsworn statements in mitigation of the death penalty, and neither is subject to cross-examination, allocution, unlike closing argument, is not limited to the record in the case, inferences from material in the record, and matters of common human experience. 306 Md. at 198 , 507 A.2d 1098 ; see also Bassett v. Com., ³⁵² 222 Va. 844 , 284 S.E.2d 844, 853 (1981), cert. denied, 456 U.S. 938 , 102 S.Ct. 1996 , 72 L.Ed.2d 458 (1982).

As indicated earlier, § 413(c)(2) states that “[t]he State and the defendant or his counsel may present argument for or against the sentence of death.” (Emphasis added.) Since allocution is neither synonymous with nor encompassed by the term “argument,” the circuit court erred in concluding that this statute prevented Harris from both allocuting and having his counsel present a closing argument to the jury. The issue before us, therefore, is whether Harris had a right to allocute that was improperly denied at the sentencing proceeding. (B) The Right of Allocution under the Maryland Rules Since 1962, the right of allocution in Maryland has been governed primarily by the rules of this Court. Md.Rule 761, adopted on January 1, 1962, applied in both capital and noncapital cases and provided in subsection (a) that “[bjefore imposing sentence the court shall afford an accused or his counsel an opportunity to make a statement and to present information in mitigation of punishment.” In 1977, this rule was rescinded and the provision governing allocution was modified and incorporated into new Md.Rule 772. 4 Like former Md.Rule 761, the new rule, as originally adopted, applied in both capital and noncapital cases.

Subsection (d) of Md.Rule 772, entitled “Allocution,” provided that “[bjefore imposing sentence the court shall inform the defendant that he has the right, personally and through counsel, to make a statement and to present information in mitigation of punishment, and the court shall afford an opportunity to exercise this right.” ³⁵³ By chapter 3 of the Acts of 1978, effective July 1, 1978, the General Assembly enacted § 413, the present capital sentencing statute. In response to this enactment, the Court adopted Md.Rule 772A, which substantially tracked the language of § 413 and applied only to capital sentencing proceedings. The rule did not contain any provision as to allocution. The Court also amended Md.Rule 772 to apply only to noncapital cases. 5 Between January 1, 1979, and July 1, 1984, the Maryland Rules did not afford defendants in capital cases a right of allocution.

It was during this périod that Harris was sentenced to death. The right of allocution in capital cases was not again addressed in the Maryland Rules until the adoption of current Rule 4-343 as part of the comprehensive revision of the rules in 1984. 6 Rule 4-343, which superseded Md.Rule 772A, provides in subsection (d), entitled “Allocution,” that in capital cases, “[b]efore sentence is determined, the court shall afford the defendant the opportunity, personally and through counsel, to make a statement.” That the Maryland Rules were silent between 1979 and 1984 as to the right of allocution in capital cases did not, of course, extinguish the right. The rescission of a rule of court, like the repeal of a statute, revives the preexisting common law, absent a clear contrary purpose. See Lutz v. State, 167 Md. 12, 17 , 172 A. 354 (1934); Neal v. State, 45 Md.App. 549, 551 , 413 A.2d 1386 , cert. denied, 288 Md. 740 (1980); 2A N. Singer, Sutherland on Statutes and Statutory Construction § 50.01 (rev. 4th ed. 1984).

Thus, when Md.Rule 772 was amended to apply only in noncapital cases, thereby removing capital cases from the purview of its allocution provision, the right of allocution in capital cases reverted to the common law of Maryland. ³⁵⁴ (C) The Common Law Right of Allocution As originally recognized by the early common law, the right of allocution provided a defendant with a formal opportunity to disclose to the court, before it pronounced sentence, certain strictly defined legal impediments to sentencing: that the defendant had benefit of clergy, had obtained a pardon, or was insane, pregnant, or not the person named in the indictment. Because sentences for felonies were then rigidly mandated by law, and the trial judge, therefore, had no discretion in imposing sentence once the determination of guilt was made, allocutory pleas for mercy would have been unavailing and were not allowed. 4 W. Blackstone, Commentaries on the Laws of England 368-71 (1769); Barrett, Allocution, 9 Mo.L.Rev. 115, 120-24 (1944); Note, Procedural Due Process at Judicial Sentencing for Felony, 81 Harv.L.Rev. 821, 821-22, 832-33 (1968). At the time the right of allocution originated, a criminal defendant had no right to counsel and was incompetent to testify on his own behalf; thus, allocution was the defendant’s only opportunity to address the court. Allocution was therefore viewed as an essential procedural right, and a court’s failure to ask a defendant “Do you know of any reason why judgment should not be pronounced upon you?” was held to be reversible error, at least in capital cases.

Green v. United States, 365 U.S. 301, 304 , 81 S.Ct. 653, 655 , 5 L.Ed.2d 670 (1961); Barrett, supra, at 115-19; Cohen, Sentencing, Probation, and the Rehabilitative Ideal: The View from Mempa v. Rhay, 47 Tex.L.Rev. 1, 9 (1968); Annot., 96 A.L.R.2d 1292 , 1295 (1964). The right of allocution existed in 1776 in essentially the form above outlined: it was a formal, narrowly defined right viewed as an essential part of the criminal sentencing procedure. This, therefore, was the nature of the common ³⁵⁵ law right originally secured for the citizens of Maryland by Article 5 of the Declaration of Rights. 7 By the mid-nineteenth century, however, the right of allocution had undergone significant changes. As sentencing statutes prescribing ranges of penalties rather than fixed penalties became more common, judicial discretion assumed a significant role in the sentencing process.

Presumably in response to the trial courts’ newly vested discretion, the scope of allocution was broadened, permitting a criminal defendant to inform the court of any mitigating factors relevant to sentencing, or simply to plead for leniency. See 1 J. Chitty, Criminal Law 571 (1819); Cohen, supra, at 9; Note, supra, at 822-23; Note, The Admissibility of Character Evidence in Determining Sentence, 9 U.Chi.L.Rev. 715, 715-16 (1942). On the other hand, because the defendant’s rights to obtain counsel and to testify at trial adequately protected most of the interests previously safeguarded only by allocution, the importance of allocution declined. Although many states continued to view allocution as an essential part of the sentencing process, and some passed statutes to this effect, a substantial number of jurisdictions came to regard allocution as an obsolete and unnecessary ceremony, even in capital cases.

Other states concluded that, while allocution continued to serve a useful function, its omission was not reversible error and did not necessarily require resentencing. Annot., supra, at 1295-1301; Barrett, supra, at 126-43, 232-53. We first addressed the nature of the right of allocution in Dutton v. State, 123 Md. 373 , 91 A. 417 (1914). There, the ³⁵⁶ defendant had been sentenced to death without first being asked whether he wanted to make a statement before the court.

On appeal, we reviewed the relevant rules of criminal procedure then in existence, and acknowledged that “most of the reasons originally given for the adoption of [the] practice [of allocution] are not applicable in this State.” 123 Md. at 381 , 91 A. 417 . We further observed, however, that “[i]n capital cases the practice, so far as we are aware, has been followed throughout this State, and in most of the Circuits in all penitentiary cases.” Id. at 383 , 91 A. 417 . Dutton strongly endorsed the practice, and recommended that trial courts provide an opportunity for allocution in all cases in which sentences of death or imprisonment in the penitentiary could be imposed. The Court explained that allocution, in its modern form, could provide the sentencing court with information that might well influence the exercise of its sentencing discretion.

The Court held, nevertheless, that “it is not reversible error, even in capital cases, not to ask the prisoner if he has any reason to give why sentence should not be passed, unless it is apparent that the prisoner was or may have been injured by the omission.” Id. at 383 , 91 A. 417 . Where such actual or potential injury was shown, the Court indicated that the appropriate remedy would be a new sentencing proceeding. Id. at 382, 384 , 91 A. 417 . The principles of Dutton were applied without modification as recently as the late 1950s in subsequent death penalty cases, see, e.g., Farrell v. State, 213 Md. 348, 354-55 , 131 A.2d 863 (1957); Duker v. State, 162 Md. 546, 548 , 160 A; 279 (1932), and in noncapital cases, see, e.g., Culley v. Warden, 218 Md. 639, 641 , 145 A.2d 226 , cert. denied, 358 U.S. 921 , 79 S.Ct. 296 , 3 L.Ed.2d 241 (1958); Henwood v. Superintendent, 215 Md. 607, 608 , 137 A.2d 210 (1957); Pride v. Warden, 215 Md. 601, 602 , 137 A.2d 175 (1957).

Dutton and its progeny thus embody the common law right of allocution as it existed when we adopted Md.Rule ³⁵⁷ 761 in 1962. Of course, as we have frequently emphasized, the principles of the common law are not immutable. Indeed, one of the hallmarks of the common law, and the key to its continued vitality, is its capacity for growth in response to changing societal values and circumstances. See, e.g., Kelley v. R.G. Industries, 304 Md. 124, 140-41 , 497 A.2d 1143 (1985); Jones v. State, 303 Md. 323 , 337 n. 10, 493 A.2d 1062 (1985); Jones v. State, 302 Md. 153, 160-61 , 486 A.2d 184 (1985); Evans v. State, 301 Md. 45, 57 , 481 A.2d 1135 (1984), cert. denied sub nom.

Grandison v. Maryland, — U.S. —, 105 S.Ct. 1411 , 84 L.Ed.2d 795 (1985); Frey v. Frey, 298 Md. 552, 557 , 471 A.2d 705 (1984). Our cases applying the Maryland rules governing allocution have altered the principles of Dutton to some extent. We have previously indicated that, because the right of allocution is not a fundamental right secured by either the federal or state constitution, it is waived if not asserted by the defendant before sentencing. See Logan v. State, 289 Md. 460, 487 , 425 A.2d 632 (1981); Robinson v. Warden, 242 Md. 171, 172-73 , 218 A.2d 217 (1966); see also Hill v. United States, 368 U.S. 424, 428 , 82 S.Ct. 468, 471 , 7 L.Ed.2d 417 (1962).

This principle of waiver is equally applicable to the common law right of allocution, and supersedes the “actual or potential injury” standard of Dutton . None of our cases have addressed precisely the situation presented in the case now before us, in which a defendant requesting an opportunity to allocute was affirmatively denied such an opportunity. Dutton and its progeny involved a trial court’s mere failure to advise a defendant regarding the exercise of a common law procedural right; the trial court’s action in the present case, in denying a defendant an opportunity to exercise that right, constitutes a serious breach of procedural fairness. In determining the appropriate remedy, we must consider the function and significance of the right of allocution in the current capital sentencing process. ³⁵⁸ In recent years, the nature of the capital sentencing process in Maryland has changed dramatically.

The Maryland capital sentencing statute, enacted in 1978, specifies that a sentence of death may not be imposed unless at least one statutorily enumerated aggravating circumstance be proven beyond a reasonable doubt, and then only if the proven aggravating circumstances outweigh any mitigating circumstances. § 413; Foster, Evans and Huffington v. State, 305 Md. 306, 309-14 , 503 A.2d 1326 (1986) (on motion for reconsideration); Foster v. State, 304 Md. 439, 471-80 , 499 A.2d 1236 (1985). Since 1979, the statute has expressly required the sentencing authority to consider any facts it finds to be mitigating. See § 413(g)(8). 8 Section 413(c)(l)(i) states that any evidence relating to any mitigating circumstance is admissible at the capital sentencing proceeding. These statutory provisions reflect a strong public policy of providing the sentencing body in capital cases with the broadest possible range of relevant information that may counsel leniency.

As we observed in Kent v. State, 287 Md. 389, 394-95 , 412 A.2d 1236 (1980), “[a] previously held opinion regarding the appropriate sentence may well be modified after listening to ... defendant’s statements in mitigation of punishment.” Although evidence of mitigating circumstances, including the defendant’s remorse, if any, can be introduced by means other than allocution, the allocutory process provides a unique opportunity for the defendant himself to face the sentencing body, without subjecting himself to cross-examination, and to explain in his own words the circumstances of the crime and his feelings regarding his conduct, culpability, and sentencing. Indeed, even “[t]he most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.” Green v. United States, supra, 365 U.S. at 304 , 81 S.Ct. at 655 . ³⁵⁹ These considerations are reflected in our current Rule 4-343, subsection (d) of which requires the court in a capital sentencing proceeding to afford the defendant an opportunity to alloeute if the