Howell v. State

⁶¹ CATHELL, Judge. Daniel Alphonzo Howell was convicted, by a jury in the Circuit Court for Prince George’s County, of first degree murder and using a handgun in the commission of a crime of violence. On appeal, he raises five issues for our consideration. They are: I. Whether the statements made by the prosecutor in closing argument unfairly prejudiced the defendant such that he was denied the right to a fair trial and such that these statements violated his right to confront witnesses against him?

II

Whether the trial in absentia violated defendant’s right to be present and his right to confront witnesses?

III

Whether the evidence was not legally sufficient to sustain the defendant’s convictions for first degree murder and use of a handgun in a crime of violence?

IV

Whether the trial court erred in not allowing defense counsel to waive trial by jury? V. Whether the delay of sixteen months and fourteen days between the initiation of the prosecution and the start of trial was a denial of defendant’s right to a speedy trial? We shall address the issues in the order we feel most appropriate, and provide the relevant facts as we discuss them. We first address appellant’s second issue: 1.

Whether the trial in absentia violated defendant’s right to be present and his right to confront witnesses? While it is clear that Howell was fully aware of his trial date and time, he was not present when his trial was initially called. The court was advised that he was on his way to the courthouse. At approximately 10:35 a.m., he appeared outside the courtroom door and was told to remain there.

Thereafter, jurors were called for his case, and his attorney told him to take a seat in a specified location which was no more than 200 feet from the courtroom. When ⁶² counsel went to get him, he was gone. The trial court then gave Howell’s trial counsel until 1:15 to ascertain Howell’s whereabouts. The court reconvened at 2:00 p.m. and continued the matter until the following morning, telling the jurors to return at that time.

The court made other inquiries as to Howell’s whereabouts, forfeited his bond, and issued a bench warrant for his arrest. The next morning, Howell’s attorney advised the court that he was still unaware of appellant’s location. The court then held a hearing on the feasibility of trying Howell in absentia, and the trial resumed without Howell. Howell was convicted.

He appeared at his sentencing hearing and was heard on his. reason for leaving on his original trial date. He referred to his fear of retribution by Jamaicans who were looking for him. He admitted that, a week after his trial, he had called his attorney and was advised to turn himself in, but declined to do so and remained at liberty until four or five months later when he was arrested on unrelated charges. The factual situation in Barnett v. State, 307 Md. 194 , 512 A.2d 1071 (1986), is remarkably similar to the facts of the case sub judice.

The defendant in Barnett was present when the case was called for trial. He was told that jury selection would begin the next morning. He failed to appear at that time. The trial court afforded defense counsel an opportunity to investigate Barnett’s absence, and the court itself made efforts to determine his whereabouts before proceeding with a trial in absentia.

The Court of Appeals, after discussing a Pennsylvania case that focused on an extreme situation where a fugitive might be completely unaware of his trial date, adopted a liberal posture on in absentia trials: “The rule taken from LaBelle, supra, which we adopt____” Id. at 210, 512 A.2d 1071 (emphasis added). Quoting from the case of State v. LaBelle, 18 Wash.App. 380, 397-98 , 568 P.2d 808, 818 (1977), the Barnett Court then held: [W]hen a criminal defendant is present at arraignment, enters a plea, receives actual notice of the time, date and ⁶³ place of the trial, deliberately absconds without a compelling reason, is represented by counsel at trial, and never offers a satisfactory explanation for his absence, a trial court may find such actions on the part of a defendant to amount to a knowing and voluntary waiver of his right to be present and may conduct the trial in his absence. Id. at 208 , 512 A.2d 1071 (brackets in original). In Barnett , the Court referred to numerous jurisdictions that had found a waiver of a defendant’s right to be present where he had voluntarily absented himself from the trial before it commenced, and noted, in particular, that “The Supreme Court of Arizona has regularly affirmed convictions in cases where the defendant voluntarily failed to appear for any portion of the criminal trial.” Id. at 209 , 512 A.2d 1071 (citations omitted).

Elsewhere in Barnett , the Court commented favorably on cases sustaining in absentia convictions: “It should be clear, however, that no ‘talismanic properties’ attach to the point at which trial begins____ Nothing in Diaz[ 1 ] should be interpreted as precluding a court from continuing with a trial if the defendant voluntarily waives his presence before the trial commences.” Id. at 208 , 512 A.2d 1071 (quoting United States v. Peterson, 524 F.2d 167, 183-84 (4th Cir.1975), cert. denied, 423 U.S. 1088 , 96 S.Ct. 881 , 47 L.Ed.2d 99 (1976)) (citations omitted). The Court stated that the commencement of jury selection had nothing to do per se with the presence or absence of a valid waiver: “Barnett, by absconding on the morning of trial, had to know that he was waiving all of his rights involving his presence at that trial. That is the relevant consideration.” Id. 307 Md. at 212 , 512 A.2d 1071 . The Court then quoted favorably from Taylor v. United States, 414 U.S. 17 , 94 S.Ct. 194 , 38 L.Ed.2d 174 (1973): It is true that a waiver is a voluntary relinquishment of a known right and, without knowledge of a right, there can be no waiver.

But the right to try a defendant in absentia rests upon his waiver of his known right to be ⁶⁴ present, not upon the (possibly unknown) court’s right to try him while absent. Here, defendant knew that he had a right to be present and has failed to show that he did not voluntarily elect to waive that right. Barnett, 307 Md. at 212 , 512 A.2d 1071 (emphasis in original). We have previously set out the factual situation that resulted in Howell’s being tried in absentia.

The trial judge in the case at bar continued the trial to the following day based on his belief that Howell would contact his counsel with reasons for his absence. He also had hospitals checked to make sure that Howell’s absence was not caused by illness. The trial court adequately informed the jury of the in absentia proceeding and gave the appropriate cautionary instructions throughout the trial. Howell later filed a motion for new trial and testified about his absence: [DEFENSE COUNSEL] Did you come to this courthouse in Prince George’s County on that date?

A Yes, sir. Q What was your reason for coming to the courthouse that day? A I came to court because I knew it was the day for my trial. ****** A Not clearly, sir, but the last thing I remember you said you were going to pick the jury, and you take me around the back to sit on the bench and wait there. He then testified as to what his wife told him about three men: A ...

When she went around there she saw three males and one of the guys said where is the boy? If he is here yet? ... she said she don’t trust the way they look____ Q Are you saying they followed her back to you? A Yeah.... Q How many of these guys followed her back? ⁶⁵ A I saw two____ Q ...

What happened then? A ... I just left. Q Why?

A I just feel scared. Q Scared of who? A Them guys. They were Jamaicans and I was scared.

I figure they are connected to Ms. Brandford and they are from Miami. I was really scared. I know — I don’t know them, but I know what they are capable of doing. The reason why I left they was asking if I was there---- So I just left.

Q What did you think they were going to do? A Sir, I know they would shoot me, somebody seeking revenge. I know that for a fact. On cross-examination, the following ensued: Q Did you try and contact the Court, the Judge— A No, ma’am.

Q —the day of the trial, or the day after the trial was scheduled? A No, ma’am. No. Q Did you try and contact the police to let them know that you were afraid for your life? A I didn’t contact the police.

The court then asked several questions: THE COURT: Did you think that your attorney might be a wee bit surprised that you weren’t there for trial? THE WITNESS: Yes, sir. THE COURT: But you didn’t call him that night? THE WITNESS: No, sir.

THE COURT: Why not? ... THE WITNESS: I was like paranoid, sir. I was paranoid. ⁶⁶ THE COURT: Did you bother going to a sheriff and saying, Mr. Sheriff, those two fellows are bothering me, I am afraid of them? THE WITNESS: No, I didn’t do that, sir, because— THE COURT: Why not?

THE WITNESS: Because they really didn’t appear physically for me to do that. ****** THE WITNESS: They didn’t come to no physical contact. THE COURT: Then why were you afraid of them? THE WITNESS: Because my wife told me that there were these guys around there asking about me____ ****** THE COURT: You didn’t turn yourself in, you were arrested on another charge? THE WITNESS: Yes, sir.

THE COURT: You didn’t surrender to anybody? THE WITNESS: No, sir. THE COURT: They arrested you? THE WITNESS: Yes, sir.

The trial court denied the motion for new trial finding, in part: His wife is the one that did all the hearing. He didn’t hear anything. His wife should have been here to testify to that to make it carry any weight in my mind. But even if all of that is true when he leaves he doesn’t even bother to call his attorney who has been representing [him] all these months and tell his attorney I’m over at whatever place, I need your advice.

He doesn’t do anything for I don’t know how many months it was until he is picked up on another charge. So I simply don’t believe the Defendant when he said that he left because he was afraid. Even if I did believe it that is no good reason for his absence. There were a lot of other options that he had.

I don’t find that the ⁶⁷ Defendant is in any way stupid. He is a reasonably intelligent young man. * >|t * * * * So the reason he walked away wasn’t because he was fearful. The reason he walked away was that on seven prior court appearances the witness was not there, he knew they were having trouble getting the witness there. On the day of trial when the witness did show up he chooses to walk away.

That is why he walked away, the writing was on the wall, the witness was there. [Emphasis added.] We hold that the trial judge did not abuse his discretion in conducting the trial in absentia. The Court of Appeals, in Barnett , distinguished between the holding in LaBelle and the holdings in Pennsylvania and New York. The LaBelle case granted broad powers to the Louisiana trial courts to proceed in absentia; the Pennsylvania and New York courts severely limited the trial court’s discretion to conduct trials in absentia. The Court in Barnett unequivocally rejected the stricter rationale and clearly adopted the liberal LaBelle rule.

See Barnett, 307 Md. at 208 , 512 A.2d 1071 . The Barnett holding permits trials in absentia when the defendant voluntarily absents himself from trial. We hold that it is not necessary that the proceeding shall have progressed through jury selection, or even that the case has been called before the defendant absents himself, as long as he was aware of the trial date, his counsel is present, and the other provisions of the LaBelle rule are met. Under the LaBelle/Barnett holdings, a defendant who fails to appear for a known trial date may be tried in absentia. 2 In the case sub judice, the trial judge, Judge McCullough, exhibited a complete understanding of the rule stated in Barnett and, in his conduct of the instant proceedings, ⁶⁸ followed its suggested procedures almost to the letter.

We doubt that any trial in absentia could be conducted more in accordance with Barnett than the trial in the case at bar. We perceive no error. 2. Whether the statements made by the prosecutor in closing argument were improper and unlawfully prejudiced the defendant? During the trial, the evidence indicated that a longtime acquaintance of the victim was in the victim’s bedroom at the time he was shot and, in fact, had been staying in the victim’s house.

The witness, an individual named Carnell, did not testify. The appellant’s counsel argued to the jury in closing: [B]ut it doesn’t tell you the most important thing about a reasonable doubt, and that is where the hell does it come from. Where in this case does it come up? Where is it created?

How will I know it when I see it? This is how you do it. Reasonable doubt comes from any one of the following four things. The biggest source of reasonable doubt [is] absence of evidence____ We have no burden of proof, no responsibility with respect to the evidence, so if there’s an absence of evidence, that is reasonable doubt.

That is attributable to the State. [Emphasis added.] Referring to a chart, appellant’s counsel then argued: Carnell is the little blue circle. They say that’s the position of the people and that Mike just cold-bloodedly came in and shot this man and while he was doing it my client was right there next to Carnell and did something to keep Carnell from preventing that shooting from happening. That’s basically their theory. * * * * * # By the way, whoever said that my client kept Carnell at bay? Did Pat ever testify that Carnell — that my client said you stay out of this?

Did Pat ever testify that my ⁶⁹ client said anything nasty, you know, kill him, Mike, get him, Mike, I’ll keep this guy out of the way? Hey, you back up, don’t get into this. Did you hear any testimony like that? * * * * # lie Where is Carnell? Pat tells you they’ve been friends for 12 years.

He’s been staying there for two weeks. He’s not a drifter in their lives. He’s not an acquaintance. That’s about as strong of a friend as anybody can have, let you stay in their house for two weeks, known you for 12 years.

He’s there during this incident. Where is he? Why didn’t he come into this courtroom and say, listen, this client of Mr. Houlon’s held a weapon up to my head? He didn’t say anything to me, but he held a knife or a gun or a spoon or a banana.

He held something up to my head and it was tacitly understood if I tried to intervene in this thing, and, by the way, how do I intervene with a guy with a gun. Consider who’s going to help out this guy in the Government’s version. Under the Government’s version Carnell has no weapon. The poor dead man has no weapon.

The only one with a weapon is the shooter and maybe my client under the Government’s version. What’s Carnell going to do, put his hand out and stop the bullet? But, in any event, and getting away from that foolishness, is Carnell in here to say — isn’t he the guy who should tell us whether he was held at bay? People who are held at bay are the best people to tell you they’re held at bay.

I was intimidated or I was threatened because this guy held a gun or knife. You know, he was whispered to or he said to me you make a move, you’re a dead man. Where is he? I don’t have a burden of proof.

Am I supposed to dump him in this courtroom? I have no burden of proof. They have the only burden. [Emphasis added.] The State responded, in part: MS. KOENIG: May it please the Court, defense counsel, ladies and gentlemen of the jury, as defense counsel ⁷⁰ told you, I get to address what he said.

It’s called rebuttal____ # # # * $ * Where is Carnell? Where is this Mr. Carnell? How come he’s not here helping poor Mrs. Brandford, his long time friend? I’ll tell you why he’s not here.

It’s because— MR. HOULON: Objection, objection. THE COURT: Sustained. It’s no evidence as to why or why he is not here.

MS. KOENIG: Then don’t yourselves speculate as to why he’s not here, as defense counsel asked you to. Put yourself in his shoes. There was an execution.

Are you going to come forward? Are you going to place your life on that box and say that’s the man who did it? MR. HOULON: I object to that, Your Honor.

THE COURT: Objection overruled. MS. KOENIG: He’s not going to do it and he didn’t do it and he will never do that____ In addition to objecting at the time the remarks were made, the appellant made a motion for mistrial later in the proceeding. He also based his Motion for New Trial, in part, on the alleged improper remarks of the prosecutor.

The trial court, in denying the motion for mistrial, stated that it did not believe the remarks, if improper, were sufficiently prejudicial so as to require a mistrial. In a later ruling on appellant’s Motion for New Trial, the trial judge opined, “I think counsel opened the door. I think you asked for it. She had a right to say it.” Appellant, on appeal, only challenges the trial court’s denial of his motion for mistrial.

We hold that the trial court did not abuse its discretion in denying either of the motions. In Douglas v. State, 32 Md.App. 311, 315 , 360 A.2d 474 (1976), we restated the guide for determining abuse of discretion in mistrial cases, quoting Cornish v. State, 272 Md. 312 , 322 A.2d 880 (1974): “The most significant guideline for the exercise of the trial judge’s discretion is that a mistrial is to be declared only where it is ‘manifestly neces ⁷¹ sary,’ or ‘under urgent circumstances,’ or ‘only in very extraordinary and striking circumstances,’ and declaring a mistrial is not ‘to be lightly undertaken.’ ” Id. at 318 , 322 A.2d 880 . See also State v. Crutchfield, 318 Md. 200 , 567 A.2d 449 (1989), cert. denied, — U.S.-, 110 S.Ct. 1926 , 109 L.Ed.2d 289 (1990); Jones v. State, 310 Md. 569, 587 , 530 A.2d 743 (1987); Ezenwa v. State, 82 Md.App. 489 , 572 A.2d 1101 (1990). In Vandegrift v. State, 82 Md.App. 617 , 573 A.2d 56 , cert. denied, 320 Md. 801 , 580 A.2d 219 (1990), we stated: Maryland courts have held that, subject to the trial court’s discretion, “both the State’s Attorney and defense counsel are given wide latitude in the conduct of closing argument____” And, there are “no well-defined bounds beyond which the eloquence of an advocate shall not soar.” ...

Appellant further asserts that the circuit court erred in failing to take appropriate action to mitigate the effects of the State’s remarks to the jury. Although Judge Rollins did not give any curative instruction to the jury in this regard, the failure to instruct the jury to disregard certain comments is not ordinarily, by itself, considered to be judicial error. And, of course, absent a clear showing of prejudice to the defendant, the trial judge’s discretion in denying a mistrial will not be disturbed on appeal. Id. 82 Md.App. at 636, 573 A.2d 56 (citations omitted).

Judge Chasanow recently discussed the standard of review in Hunt v. State, 321 Md. 387 , 583 A.2d 218 (1990), where it was alleged that a witness’s testimony during trial and a prosecutor’s remarks at a sentencing hearing each warranted the granting of a mistrial: “[T]he declaration of a mistrial is an extraordinary act which should only be granted if necessary to serve the ends of justice.” This Court has recognized that granting a motion for a mistrial lies within the discretion of the trial judge. The trial judge, who hears the entire case and can weigh the danger of prejudice arising from ⁷² improper testimony, is in the best position to determine if the extraordinary remedy of a mistrial is appropriate. Id. at 422 , 583 A.2d 218 (quoting Jones v. State, 310 Md. 569, 587 , 530 A.2d 743 (1987), sentence vacated and remanded, 486 U.S. 1050 , 108 S.Ct. 2815 , 100 L.Ed.2d 916 , sentence rev’d, 314 Md. 111 , 549 A.2d 17 (1988)). The prosecutor in Hunt , in his rebuttal argument at the sentencing hearing, had referred to the defendant’s allocution statement, by stating “it is worthless, it is trash, it is an attempt to manipulate you ..., it is insulting, it is demeaning, ... written by God knows who ...” The Court held: A prosecutor has wide latitude in presenting a closing argument.

The prosecutor is free to speak harshly and engage in “oratorical conceit or flourish and in illustrations and metaphorical allusions.” At the same time, the prosecutor’s freedom to argue has some limits in order to protect the defendant’s fundamental right to a fair trial. For example, the prosecutor should not make remarks calculated to inflame the jury and prejudice the defendant. But not every improper remark by a prosecutor necessarily requires a reversal. Determining whether a prosecutor has crossed the line separating “oratorical conceit” from prosecutorial misconduct is initially within the discretion of the trial judge and should depend upon the facts of each case.....

Id. 321 Md. at 434-34 , 583 A.2d 218 (citations omitted). See also Ford v. State, 73 Md.App. 391, 394 , 534 A.2d 992 (1988) (the prosecutor is entitled to rebut any defense argument); Sibiga v. State, 65 Md.App. 69 , 499 A.2d 484 (1985) (prosecutor’s comparison of defendant to A1 Capone was highly improper, but not so inflammatory under the circumstances as to create a real likelihood of prejudice); Holbrook v. State, 6 Md.App. 265 , 250 A.2d 904 (1969) (prosecutor’s reference to defendant’s prior convictions was improper under the circumstances). The negative evidence rule was adopted in Eley v. State, 288 Md. 548 , 419 A.2d 384 (1980), where the defense counsel stated to the jury, “[w]e talked about all this testimony that ⁷³ was in. Let’s talk about the evidence that didn’t exist, that didn’t happen.

We talk about — ” Id. at 550 , 419 A.2d 384 . The trial court ruled that the defendant could not comment on the lack of fingerprint evidence. The Court of Appeals reversed, stating, in part, that the purpose of the rule forbidding comment in respect to matters not in evidence was “to prevent counsel ... from attempting to introduce ... matters which ought not be considered in ... a determination of guilt or innocence ... [and] to prevent counsel from suggesting evidence ... not presented at trial thereby providing additional grounds for finding a defendant innocent or guilty.” Id. at 552 , 419 A.2d 384 . It then held that the defendant could comment on the failure of the State to produce evidence.

We had occasion to address Eley in a converse situation in Henderson v. State, 51 Md.App. 152 , 441 A.2d 1114 (1982), where Chief Judge Gilbert commented: “The message sounded by Eley is clear: Possible relevant evidence not introduced, or its absence explained, may be used against the State.” Id. at 153, 441 A.2d 1114 . In Henderson the defendant was asked, over the State’s objection, whether items of evidence had been obtained from the appellant when he was arrested. He responded that they had not been so obtained. The State had been previously alerted to the defendant’s intention to argue negative evidence in closing argument by the defense’s pretrial motion in limine, which requested that the State be forbidden to elicit testimony concerning the defendant’s residence at a pre-release center.

The State received permission from the trial judge to establish that a search of the place where the defendant was arrested was not made because it was a pre-release center, and it was improbable that a weapon would be carried into the center. We concluded: We think Judge Levin properly allowed the State to adduce testimony as to why the murder weapon was not located and presented at trial. Although appellant disavows any intent “to show that Detective O’Brien had not aggressively investigated the case,” Eley would have allowed such an argument had appellant advanced it to ⁷⁴ the jury. Even considering appellant’s assurance that there was no intention “in closing argument to say whether or not the police did anything wrong in their investigation in the matter,” the inference to be drawn from Detective O’Brien’s testimony was clear____ Based on what was then before him, and cognizant of Eley , he [the trial judge] took the appropriate measure to assure that the State was not treated unfairly.

Id. at 157, 441 A.2d 1114 . See also Ford, 73 Md.App. at 396 , 534 A.2d 992 (“If the State believes that the defense will present a negative evidence argument, the prosecutor may introduce evidence to explain why certain evidence was not secured.”) (Citation omitted.) The appellant in the case sub judice asserts that the court took no action to cure any possible prejudice, such as informing the jury of the impropriety of the remarks. We note that the court did announce before the jury that, “It’s [there’s] no evidence as to why or why he is not here.” The prosecutor informed the jury, “Then don’t you speculate as to why he was not here.” Though we agree that a direct instruction was not given, it was pointed out to the jury that there was no evidence of the reasons for the witness’s absence. The court, in its general instruction, also told the jury: Keep in mind that you are bound by my instructions as to the law---- In other words, you will determine from the evidence what actually happened.

The evidence in this case consists of the testimony of the witnesses from the witness stand and the physical evidence or exhibits admitted into evidence and any stipulations made by counsel. * * * * * sjs Counsel for the State and counsel for the defendants are now going to argue the case to you. They’re going to comment on the evidence and they’re going to say what ... the evidence shows. If they say anything ... about the