Johnson v. State

WENNER, Judge. Ernest Johnson, Jr., appellant, was convicted by a jury in the Circuit Court for Baltimore City (Steinberg, J.) of unlawfully carrying a handgun and possession of a handgun by one previously convicted of a crime of violence. Consecutive sentences of three years’ imprisonment were imposed. Appellant raises the following questions on appeal: 1.

Did the court below err in failing to determine whether appellant was competent to stand trial, and, thereafter, in failing to determine whether appellant was competent to waive his right to counsel? 2. Did the court below err in refusing appellant’s request to retract his waiver of counsel? 3. Did the court below err in proceeding with the trial in appellant’s absence, where appellant was representing himself and no counsel was appointed to represent appellant’s interests during the period of time appellant was absent? 4. Did the court below err in failing to conduct a hearing in response to appellant’s motion to suppress, relying instead upon the ruling of a judge in a previous trial that had ended in a mistrial because of the court’s determination that appellant was incompetent to stand trial? 5.

Did the court below err in giving an improper “Allen charge” to the jury? 6. Did the court below err in imposing double punishment for one offense? Our answer to each of the questions presented is no, for reasons we shall explain. Since the issues raised by this ³⁵³ appeal are fairly numerous and complex, we will first set out the facts in some detail.

BACKGROUND Appellant was arrested on January 2, 1983, and a privately retained attorney entered his appearance on appellant’s behalf. Appellant elected a jury trial and waived his right to be tried within 180 days pursuant to Maryland Rule 746. 1 The trial scheduled for January 5, 1984, was postponed so that appellant could be examined by the court’s medical staff to determine his competency to stand trial. He was examined on February 3, 1984, and found to be competent. The trial was postponed again on July 20, 1984, at appellant’s request, to give him more time to prepare for trial.

The trial began before Judge Wahl on October 2, 1984. Appellant was represented by privately retained counsel. When the prosecutor called the second charge, unlawful possession of a handgun by one previously convicted of a crime of violence, appellant objected. The court told him not to interrupt the proceedings and speak through his attorney.

THE COURT: ... While you are sitting in this case you won’t say anything. You are not going to express yourself out loud, you are not going to have any outbursts. You have nothing to say to the court, that is not to say you can’t whisper to your attorney, but I don’t want any outburst.

If you do insist on speaking out loud or making outbursts you will find yourself held in contempt of court and you will be back in jail. Do you understand that? DEFENDANT JOHNSON: Yes. THE COURT: This is not your opportunity to talk, it’s your attorney who will do the talking, you may whisper to him as I told you.

Do you understand that? ³⁵⁴ DEFENDANT JOHNSON: Yes, I understand what you said. I am not familiar with that. And when I am not familiar with it in any court I speak up. THE COURT: Do you want to not have an attorney and proceed in proper person?

DEFENDANT JOHNSON: Preferably a postponement. THE COURT: I ask you to let your attorney speak for you. MR. LEVINSON [Assistant State’s Attorney]: I want the record to show that the Defendant has been in court on numerous occasions and the Defendant has been advised of his right to counsel and he had counsel and has fired [sic] and in proceeding he has either a counsel or been advised of his right to counsel.

THE COURT: Sir, I am asking you for the last time are you going to let your attorney speak for you and remain quiet yourself? DEFENDANT JOHNSON: I will remain quiet, Your Honor. Following this exchange, the court heard a number of pre-trial motions, including a motion to suppress the handgun found on appellant’s person at the time of his arrest; which was denied. A jury was empaneled and sworn, and the State began to present its case.

Appellant repeatedly interrupted the proceedings and, after several unsuccessful attempts to quieten him, he was removed from the courtroom. He was removed from the courtroom the following day, after several more interruptions, and sent to the medical staff of the circuit court for an evaluation. The medical staff made a preliminary finding that appellant was incompetent to stand trial. Based on that report and his attorney’s proffer that he was incompetent, Judge Wahl granted appellant’s motion for a mistrial and ordered him sent to Clifton T. Perkins State Hospital for evaluation.

Appellant was also allowed to enter a plea of not guilty by reason of insanity. ³⁵⁵ The results of the examination at Perkins are not in the record. The record does, however, reflect that on December 17, 1984, the trial was postponed again at appellant’s request. On that date the appearance of his privately retained counsel was stricken and the Public Defender entered his appearance on behalf of appellant. The trial was postponed in January of 1985 to give the defense more time to prepare, and was postponed a sixth time in February of 1985.

The trial finally began on March 19, 1985, before Judge Marvin Steinberg. After the judge had ruled on a number of pre-trial motions, appellant began to interrupt. The judge told him to speak through his attorney. He replied, “I will talk through him but I’m saying, Your Honor, I don’t trust no lawyers, number one.” He was asked if he wanted to proceed with counsel.

He answered, “Pm saying, if he is going to cooperate with me and we do it together, yes.” The judge granted a brief recess so that appellant could confer with his attorney. After the recess, Mr. Turner, his attorney, told the court: “Your Honor, all I can report to you, as an officer of the court, is that Mr. Johnson says ‘you can go ahead and do what you want, but I am going to interrupt if it’s not going right.’ ” The proceedings continued. Defense counsel moved for a severance of the charges, which was denied. Appellant apparently became dissatisfied with his attorney’s efforts on his behalf: THE DEFENDANT: Judge, Your Honor, I request a postponement, please.

I’m not staying here. All that lying. I’m not going for it ... I’m not going for that ...

I object to all of it, Your Honor. MR. TURNER: May we approach the Bench? THE DEFENDANT: I will handle my case myself.

THE CLERK: [sic] I would like to see counsel at the bench. THE DEFENDANT: I don’t want him to represent me. He’s not competent. I object. ³⁵⁶ Following a lengthy waiver inquiry, the judge found that appellant had waived his right to counsel.

Mr. Turner’s appearance was stricken, but he was told to remain in the courtroom to advise appellant, if appellant so desired. All remaining motions were disposed of with appellant representing himself. Jury selection began. At that point appellant requested, and was refused, permission to withdraw his waiver of counsel.

A jury was empaneled and sworn, and opening statements were made. After the jury was dismissed for the evening, appellant renewed his objection to being tried for the charge of unlawful possession of a handgun by one previously convicted of a crime of violence. That charge had been brought by way of a criminal information. Appellant believed that he could not be charged by way of a criminal information unless he consented to being charged in that manner.

He also argued that the evidence supporting that charge, that he had previously been convicted of crime of violence, would be prejudicial to the other charge and should not be introduced. He stated repeatedly that he completely disagreed with the court’s views on these issues. He was asked if he had any requests for the next day, and he responded: “I would rather not come in here, if you are going to do that. I keep telling you that.

I’m not sitting here no way with a criminal information. I have a right. This is my constitutionality, and you always rule in favor for [the prosecutor].” The judge told appellant to sit down or he would be removed from the courtroom. Appellant declared: You can take me out where I came from.

I told you I don’t like this lying and double-dealing. This has nothing to do with the handgun, nothing, and I can’t get an impartial trial if you keep bringing that shit up. Guilty or not. He don’t know nothing about that.

No, I won’t go along with that. No. Hell no. I’m tired. No, I don’t want to.

I’m not submitting to anything. After a discussion about the next day’s witnesses, appellant once more objected to the charge of illegal possession of a handgun by one previously convicted of a crime of violence, ³⁵⁷ saying, “[t]his has to be reflected on the record, because I told you I am not consenting to that. The only charge I am consenting to is the illegal possession of a handgun.” Court was adjourned, and Mr. Turner was told to return the next day to advise appellant. The next morning appellant declared that he was disqualifying himself as his attorney, and his mother was going to hire an attorney for him.

The court would not permit him to withdraw his waiver of counsel and hire another attorney. Appellant then stated that he refused to participate in the trial at all, and insisted that he be allowed to leave the courtroom. The prosecutor suggested that appellant be forced to stay in the courtroom. The transcript reads: THE COURT: Mr. Levenson, I think that the Court cannot force Mr. Johnson to have a lawyer, and I think the Court cannot force Mr. Johnson to leave or stay.

Mr. Johnson appears to the Court to be acting in a perfectly rational way. He appears to know full-well the nature of these proceedings. He has discussed motions with this Court. He has given the Court reasons.

He has expressed a desire that he wants to leave the courtroom. He does not have to be present during the trial, I think, if he wants to leave. Is that your request, that you leave the trial, Mr. Johnson? THE DEFENDANT: Yes, Your Honor.

Before appellant left, the court reiterated that Mr. Turner would remain in the courtroom to advise the court. Appellant was told he could return at any time. He refused to do so. After the State concluded its case, appellant was brought back into the courtroom.

Mr. Turner advised him of the status of the case and asked if appellant wanted to do anything. He responded, “I object to this whole procedure. I don’t want nothing to do with it.” He told the court that he objected on the grounds (1) that he was not competent enough to represent himself; and (2) that the State did not ³⁵⁸ allow him enough time to prepare his case; and (3) that he was trying to obtain counsel. He then said that he was under the influence of drugs.

The court stated: “Let the record show that it is the observation of the Court that Mr. Johnson appears to be normal in all respects and understands full-well what is happening and is able to communicate his thoughts and concerns quite coherently to the Court.” Appellant was then, at his request, excused from the courtroom. Mr. Turner suggested to the court that a motion for judgment of acquittal be made on behalf of appellant. The court made such a motion and denied it. The State made a closing argument.

Rather than summarize the State’s case, suffice it to say that appellant does not question the sufficiency of the evidence. After deliberating for half an hour, the jury found appellant guilty on both counts. I. Appellant’s competence to stand trial and his competence to waive his right to counsel We note at the outset that the test for determining competency to stand trial, as set out in Md.Health—General Code Ann. § 12-101(d) (1985 Cum.Supp.), is whether the accused is able to understand the nature or object of the proceeding or is able to assist in his defense. See Raithel v. State, 280 Md. 291 , 372 A.2d 1069 (1977).

One accused of criminal conduct is presumed to be competent to stand trial. Hill v. State, 35 Md.App. 98, 105 , 369 A.2d 98 (1977). However, § 12-103(a) of the Health—General Article mandates that: “[i]f, before or during a trial, the defendant in a criminal case appears to the court to be incompetent to stand trial or the defendant alleges incompetence to stand trial, the court shall determine, on evidence presented on the record, whether the defendant is incompetent to stand trial.” Thus, the trial court’s duty to determine the competency of an accused to stand trial is triggered in one of three ways: (1) upon an allegation by the accused himself ³⁵⁹ that he is incompetent; (2) upon an allegation by defense counsel that the accused is incompetent; or (3) upon the court’s sua sponte decision that the accused appears to be incompetent. Smith v. State, 62 Md.App. 670, 677 , 491 A.2d 587 , cert. denied, 304 Md. 96 , 497 A.2d 819 (1985).

Although a judicial determination of the accused’s competency to stand trial is mandatory in any of those three situations, where the accused has been found competent and thereafter alleges that he is incompetent, the court is not required to hold an additional hearing to make findings of fact and conclusions of law as to competency. Stewart v. State, 65 Md.App. 372, 377 , 500 A.2d 676 (1985). Appellant argues that where, as here, an accused has been adjudicated incompetent to stand trial, a presumption arises that he is incompetent for purposes of all subsequent proceedings. Thus, he asserts, an additional evidentiary hearing on the record was mandatory before further proceedings could be held.

We need not decide whether appellant’s argument is correct, however, because, contrary to his recitation of the facts, he had never been judicially determined to be incompetent to stand trial. Appellant’s competence to stand trial was not raised before or during the trial. When questioned by the court, appellant stated that he was not mentally ill. He argues now that it would be somewhat circular to hold that one who is incompetent to stand trial must be competent enough to understand that he is incompetent to stand trial.

This may be so. Nonetheless, we note that while appellant was still represented by counsel, his attorney told the court that he thought appellant was competent to stand trial. In addition, the trial judge conducted a lengthy and detailed examination of appellant. The judge’s questions concerned not only appellant’s understanding of the charges and of his rights, but also inquired into appellant’s age, family history, educational background, work history, medical history and psychological history.

Appellant answered all of the judge’s questions in a rational, coherent manner. He also ³⁶⁰ displayed a marked degree of sophistication about the law. While his legal skills were not those of a lawyer, he did appear to have gained some practical understanding of the law, perhaps through his prior confrontations with it. 2 In sum, there is every indication in the record that appellant met the standard of competency to stand trial. To be sure, the results of his evaluation at the Clifton T. Perkins Hospital is not contained in the record.

We infer, however, from the fact that he had been returned for trial, that he had been found competent by the staff of that institution. Moreover, that issue was not raised and decided by the lower court and has not been preserved for our review. Rule 1085. We hold, therefore, that the trial judge did not err in failing to conduct sua sponte an evidentiary hearing to determine appellant’s competency to stand trial.

Nevertheless, appellant contends that a finding of competency to stand trial does not automatically lead to a conclusion that an accused is also competent to waive his right to counsel. See Mann v. State’s Attorney for Montgomery County, 298 Md. 160, 169 , 468 A.2d 124 (1988). Thus, he argues that the trial court erred in failing to determine his competency to waive his right to counsel. We do not agree that the trial judge failed to make this determination, nor do we find that his determination was incorrect. ³⁶¹ In Faretta v. California, 422 U.S. 806, 807 , 95 S.Ct. 2525, 2527 , 45 L.Ed.2d 562 (1975), the Supreme Court held that an accused in a criminal prosecution has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so.

The Court recognized that the pro se defendant relinquishes many of the traditional benefits associated with the right to counsel, and stated that “[f]or this reason, in order to represent himself, the accused must ‘knowingly and intelligently’ forgo those relinquished benefits.” 422 U.S. at 835 , 95 S.Ct. at 2541 (quoting Johnson v. Zerbst, 304 U.S. 458, 464-65 , 58 S.Ct. 1019, 1023 , 82 L.Ed. 1461 , 146 A.L.R. 357 (1938)). Rule 4-215 implements the constitutional mandates for waiver of counsel. Snead v. State, 286 Md. 122, 130 , 406 A.2d 98 (1979). That rule provides that before a defendant may discharge an attorney whose appearance has been entered and proceed pro se, the trial judge must first determine that the waiver is knowing and voluntary.

As part of this inquiry the court must inform the defendant of the right to counsel and of the importance of the assistance of counsel, and advise him of the nature of the charges in the charging document and the possible penalties. In this case the record reveals a remarkably patient and thorough compliance with this rule. The waiver inquiry began as follows: MR. TURNER [defense counsel]: Your Honor, I don’t know what my status was in the case.

THE COURT: Your status right now is that you represent Mr. Johnson. THE DEFENDANT: I don’t want him to represent me, Your Honor. THE COURT: I understand that. THE DEFENDANT: And I have valid reasons.

THE COURT: Mr. Johnson, please be seated. We have disposed of, I think, three preliminary motions, and about at that time, I think Mr. Johnson indicated to the Court that he wanted to discharge his counsel. ³⁶² Is that correct, gentlemen? MR. TURNER: That is my recollection, Your Honor.

THE COURT: All right. Mr. Johnson, is it your desire to discharge your counsel now? THE DEFENDANT: Yes, sir, Your Honor. THE COURT: And you want to proceed on your own?

THE DEFENDANT: Yes, Sir. THE COURT: Without a lawyer? THE DEFENDANT: Yes, sir. Appellant was then placed under oath, after carefully noting: “For the record, your Honor, I don’t swear, I affirm.” He was questioned extensively about his background.

The court informed him of the charges and the possible penalties, and appellant stated that he understood. The transcript continues as follows: THE COURT: All right. Do you know what a lawyer does for you? THE DEFENDANT: Yes, sir.

When you obtain counsel, he is supposed to assist you. It’s his duty. THE COURT: You have had lawyers before; have you not? THE DEFENDANT: Yes, sir, some of the best in Baltimore, Maryland, some of the best.

THE COURT: Do you understand that a lawyer is specially trained and educated to assist you in this case? THE DEFENDANT: Yes, sir, I do. THE COURT: Do you understand that an attorney would probably be of extreme importance in determining whether or not you might have a defense to any of these charges or whether or not there are any factors which would tend to mitigate or lessen the sentence even if you were guilty? Do you understand that?

THE DEFENDANT: Yes, sir. ³⁶³ THE COURT: Do you understand that if you had an attorney, he could help you in preparing for trial; he could represent you here and continue to do so, as Mr. Turner has been doing? THE DEFENDANT: Judge, Your Honor, insofar as Mr. Turner, like I explained to you earlier, I was trying to clarify a matter of importance. THE COURT: We are not talking about Mr. Turner. I just want to make sure you understand what you are giving up when you give up a lawyer.

THE DEFENDANT: I understand. I’m saying if he is not going to help me, I don’t need him. I don’t need him to help me to go to jail. I could do that on my own.

THE COURT: Do you understand if you had a lawyer, he would help you to cross-examine the State’s witnesses? Do you understand that? THE DEFENDANT: Yes, sir, I do. THE COURT: Do you understand that if you had a lawyer, he would help you in determining what witnesses should be called in your behalf?

Do you understand that? THE DEFENDANT: Yes, sir. THE COURT: Do you understand that an attorney could assist you in your decision as to whether or not you should take the stand in your own behalf and testify in your own behalf? Do you understand that?

THE DEFENDANT: Yes, sir. THE COURT: Do you understand that if you had a lawyer, he could make and would probably make legal argument in your behalf? Do you understand that? THE DEFENDANT: Yes, sir, I do.

THE COURT: And that also the attorney would present the facts as favorably as possible to your side of the case before the Court or before the jury. A lawyer would help you do that. Do you understand that? THE DEFENDANT: Yes, sir. ³⁶⁴ THE COURT: Do you understand that even if you change your plea to a guilty plea, that a lawyer would be helpful in assisting you in developing information that would affect the sentence or other disposition of your case?

Do you understand that? THE DEFENDANT: Yes, sir, I do. THE COURT: Now, you know that Mr. Turner is with the Public Defender’s Office, and even if you could not afford a lawyer, you could continue having the Public Defender’s Office represent you. Do you understand that?

THE DEFENDANT: Yes, sir, I do. THE COURT: Do you understand that when we proceed to the trial of these charges, that you have certain rights? One of them is to call witnesses in your own behalf. Do you understand that?

THE DEFENDANT: Yes, sir. THE COURT: You have a right to confront and cross-examine the State’s witnesses. Do you understand that? THE DEFENDANT: Yes, I do.

THE COURT: Do you understand that if you wanted a witness to testify for you and he refused, you could ask the Court to file summonses and have that witness—compel that witness to testify or at least compel the witness to come to court. Do you understand that? THE DEFENDANT: Yes, sir. THE COURT: Do you understand that you have a right to have these charges proved beyond a reasonable doubt before this Court or jury could find you guilty?

Do you understand that? THE DEFENDANT: Yes, sir. THE COURT: Do you understand that a lawyer would help you do all of these things, to protect your rights? THE DEFENDANT: Yes, sir.

THE COURT: Do you understand that by giving up a lawyer, you will have to represent yourself at this trial? THE DEFENDANT: Yes, sir, I do. ³⁶⁵ THE COURT: Do you understand that this decision, to proceed in your own behalf, might hurt you at trial and might cause you some harm, because you don’t have the special training and education and experience which a lawyer has? Do you understand that? THE DEFENDANT: Judge, Your Honor— THE COURT: Do you understand that?

THE DEFENDANT: Yes, sir. THE COURT: Do you understand that if you decide to represent yourself, even though you are not a lawyer, you will still have to comply with all of the relevant rules regarding the trial of a criminal case? THE DEFENDANT: I have been. THE COURT: But you understand you’ll have to continue doing this?

THE DEFENDANT: Yes, sir. The State don’t. THE COURT: Do you understand that in the event you are found guilty and you want to file an appeal, that you will not be able to complain that you made a mistake in representing yourself? THE DEFENDANT: Yes, sir, I understand.

THE COURT: Now, understanding all of these things, do you still want to give up your right to have a lawyer and proceed on your own behalf? THE DEFENDANT: Like I explained earlier— THE COURT: Is that what you want to do, Mr. Johnson? And then you can explain. THE DEFENDANT: Yes, sir, I mean, if he is not going to do it for me.

I mean, I asked him to present the evidence that I asked him to. THE COURT: Please answer my question. If you are going to be representing yourself, the first thing you have to learn is to answer the questions. THE DEFENDANT: Yes, sir.

THE COURT: Do you still want to go ahead and represent yourself? ³⁶⁶ THE DEFENDANT: Yes, sir. THE COURT: Gentlemen, Counsel, is there anything else that you think the defendant ought to be asked? MR. TURNER: Your Honor, I have followed the litany as your Honor presented it, and I feel you have thoroughly and completely explained to Mr. Johnson his rights.

MR. LEVENSON: I would concur with that, Your Honor. THE COURT: All right. Then the Court finds this defendant has knowingly and voluntarily waived his right to counsel, and we will proceed with the defendant representing himself.

I do ask you, Mr. Turner, if you would, to simply remain as a observer at the trial table. MR. TURNER: At the trial table, Your Honor? THE COURT: No, I’m sorry.

Just in the courtroom. MR. TURNER: And I would ask that our appearance be stricken from this case, Your Honor. THE COURT: Mr. Johnson, Mr. Turner has asked that his appearance be struck.

Do you have any objection to that? THE DEFENDANT: No, I don’t. After this exchange, the court granted permission for defense counsel’s appearance to be stricken, but required him to remain in the courtroom near appellant, to advise him if necessary. Counsel remained for that purpose.

We, quite frankly, fail to see how this inquiry, which appellant characterizes as “simply routine”, could have been more thorough; nor do we feel that the judge was wrong when he found that appellant had knowingly and voluntarily waived his right to counsel.

II

The