Haynes v. State

Orth, C. J., delivered the opinion of the Court. This appeal concerns the penalty stage of the trial of EDWARD LOUIS HAYNES on a criminal charge in the Circuit Court for Talbot County. Haynes does not question the propriety of the guilt stage of the proceedings. When the case came on for trial on 14 March 1973, he judicially confessed to assaulting and beating Harvey E. Smith. 1 The trial court, satisfied ' after inquiry that the plea was constitutionally voluntary, accepted it and rendered a verdict of guilty.

On 19 April, after a presentence investigation report had been presented to the court, a sentence of 3 years was imposed. This appeal is predicated upon the report. It is contended that “the trial court could not báse its sentence upon a report which [Haynes] had not seen, was not allowed to refute or discredit, and was based in large part upon rumor and hearsay.” I Prior to 1 July 1972 the disposition of a report of presentence investigation was governed by Maryland Rule 761. After authorizing the court in § c to “order such person or organization as it may direct to make a presentence investigation and report to the court before the imposition of sentence or granting of probation,” § d prescribes: “The report, except the recommendation, shall be subject to inspection by counsel unless the court directs otherwise.” ⁴³¹ The Division of Parole and Probation is a part of the Department of Public Safety and Correctional Services.

Code, Art. 41, § 115. Section 124 (b) of Art. 41 prescribed: “The parole agents of the Department shall provide' the judges of said courts [the circuit court of any county, the Criminal Court of Baltimore, and any court of limited criminal jurisdiction] with presentence reports or other investigations in all cases which may include commitment for two or more years, when requested by any judge.” The General Assembly, however, by chapter 532, Acts 1972, repealed § 124 (b) and re-enacted it with amendments, effective 1 July 1972. The new Act changed former § 124 (b) and the effect of Rule 761 d in significant manner. The legislative intent can best be seen from the amendments to the former law and the changes in the bill as it proceeded through the Legislature.

We set it out as it appears in Laws of Maryland, 1972, volume II, p. 1493. 2 “124. (b) The parole agents of the Department shall provide the judges of said courts with presentence reports or other investigations in all cases [which may include commitment for two or more years,] when requested by any judge. The presentence reports witt SHALL be made available, UPON REQUEST, to the defendant DEFENDANT’S -or Ms-attorney -or-AND the State’s Attorney’s Office. However -the- presentence reports -are- SHALL BE confidential and not available for public inspection except upon court order or for use by any correctional institution.

Such agents shall also perform such other probationary services as the said judges may from time to time request.” 3 ⁴³² Thus, as of 1 July 1972, § 124 (b) of Art. 41 provided, with regard to reports of presentence investigations made by parole agents: “The presentence reports shall be made available, upon request, to the defendant’s attorney and the State’s Attorney’s office. However presentence reports-shall be confidential and not available for public inspection except upon court order or for use by any correctional institution.” The history of the bill from proposal to approval, makes clear that the Legislature with respect to presentence reports provided by the Division of Parole and Probation, eliminated the discretion of the trial court regarding their availability, except as to public inspection. 4 In this respect the statute pre-empts Rule 761 d. Although such a report shall be confidential and not available for “public inspection” except upon court order or for use by a correctional institution, the defendant's attorney and the State’s Attorney’s office, upon request, are entitled to it as of right. The recommendation contained in the report is no longer excepted, and it also shall be available to counsel for the defense and the prosecution.

It is equally clear, however, that the Legislature intended that the report not be available to the defendant as of right at his request; such a provision was in the bill as originally written but was subsequently deleted. Nevertheless, we do not construe the statute as requiring that a defendant be always kept in ignorance with respect to the information obtained by a presentence investigation. “It is surely true”, we said in Towers v. Director, 16 Md. App. 678, 680-681 , “that a trial judge in this State, as in the federal system, ‘generally has wide discretion in determining what sentence to impose. It is also true that before making that determination, a judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may ⁴³³ consider, or the source from which it may come.’ United States v. Tucker, supra, at 446, and cases there cited; Bryson v. State, 7 Md. App. 353, 355 ; Washington v. State, 2 Md. App. 633, 634 ; Gee v. State, 2 Md. App. 61, 68 . See Maryland Rule 761.” “In such cases, however, any information which might influence his judgment, which has not been received from the defendant himself or has not been given in his presence, should be called to his attention, or to the attention of his counsel, without necessarily disclosing the sources of such information, so that he may be afforded an opportunity to refute or discredit it.” Driver v. State, 201 Md. 25, 32 . 5 Of course, if defense counsel exercises the right to have the presentence investigation report made available to him, he will have knowledge of the sources of information as set out therein, but sound discretion may dictate that he not disclose those sources to the defendant even though he discusses with the defendant the information itself.

The short of it is that we see nothing in the statute or the Rule which precludes a defendant’s attorney from discussing with the defendant the information contained in a presentence investigation report to the extent necessary to afford a fair opportunity to refute or discredit that information. See Turner v. State, 5 Md. App. 584 ; Jordan v. State, 5 Md. App. 520 . ⁴³⁴ II In the instant case the record shows that the report of the presentence investigation of Haynes, made by the Division of Parole and Probation, was available to Haynes’s attorney. The report was sent to the trial judge with a covering letter dated 11 April 1973 reading, in part, as follows: “Per the instructions of the Court, copies are also being forwarded to the State’s Attorney and Defense Attorney, Harry E. Sadoff, Esquire, with a copy of this letter as a reminder that Court policy requires that the contents of this presentence investigation not be divulged to the defendant or anyone else and with the understanding that the copy of the investigation will be returned to this Division after disposition of the case.” If defense counsel was precluded by “court policy” from divulging to Haynes the contents of the report to the extent necessary to afford Haynes a fair opportunity to discredit, refute or explain information therein contained which might influence the trial court in its judgment in sentencing, such “court policy” was wrong, as we have indicated. 6 As far as we can ascertain from the record, defense counsel abided by the caution in the letter sending him a ⁴³⁵ copy of the report of the presentence investigation. When he addressed the court he said: “I don’t want to stand here and repeat everything in this report because your Honor has had a chance to look at it, as well as myself and Mr. Horne [State’s Attorney].” Nothing in the remarks he made to the court lead us to believe that he discussed the information with Haynes.

He sought a suspension of the execution of sentence and probation on conditions. The prosecutor responded at length, arguing against suspension and probation. He discussed the circumstances surrounding the offense of which Haynes stood convicted and pointed out Haynes’s prior criminal record as listed in the report. He referred to the information in the report in detail.

He opined: “May it please the Court, we are forced to say there’s not one single sentence in this presentence investigation which would lead us to concur with Mr. Sadoff [defense counsel] that this defendant is a fit candidate for probation. Indeed everything in the presentence investigation indicates quite the contrary.” The court offered Haynes the right of allocution, Rule 761 a, and he responded, giving his version of the encounter with Smith. The prosecutor had referred to that part of the report which characterized Haynes as a “street person,” and the leader of a group composed of individuals with bad reputations and criminal records. Haynes, in his remarks to the court, denied that he had ever “had trouble on the street. * * * I am not a street guy.

I have been on the street due to the minor problem, and when I came out the last time I wasn’t on the street much. I was there but wasn’t there too much and to use drugs there is no where else to go, and as far as Sug Gibson [who the report said was one of