Morales v. State

CHASANOW, Judge. Jose Julio Morales was convicted of possession of cocaine with intent to distribute and conspiracy to distribute cocaine. He was sentenced to concurrent terms of imprisonment of twelve years and four years. On appeal, the Court of Special Appeals affirmed the convictions.

Morales v. State, Unreported, No. 635, September Term, 1990, filed March 12,1991. We granted certiorari to determine whether the trial court, McKee, J., erred in advising Morales, who was representing himself at trial, concerning his right to testify or not to testify, as well as the use of his prior convictions for impeachment purposes. Morales waived his right to counsel despite the court’s extensive warning about the dangers in proceeding pro se. The trial court urged Morales to obtain the assistance of an attorney, but Morales assured the judge that he had been to court before and wanted to represent himself.

The trial judge went so far as to state “I have done everything, I have done everything except get on my knees and beg you to get a lawyer ... I am begging you to get a lawyer.” Morales still insisted he did not want an attorney, and the ³³³ trial went forward with Morales representing himself. At the close of the State’s case, the trial court advised Morales of his constitutional right to take the witness stand and testify in his own defense or not to testify and remain silent: THE COURT: Now, is the time for you to put on your evidence. Call your first witness.

THE DEFENDANT: Just me. THE COURT: Okay. So you will understand, evidence is only what a witness says from there or a physical thing that they — somebody on the witness stand describes and it’s introduced like this was, or a stipulation and the stipulation is an agreement. Now, you remember the State stipulated and they agreed that you didn’t have money, drugs, or a beeper on your person when you were arrested.

Isn’t that what you stipulated to? STATE’S ATTORNEY: Yes, Your Honor. THE COURT: That is how evidence is taken in. Not what is said down there.

What he says from down there is not evidence. What you say from down there is not evidence. Do you want to take the witness stand and testify? You may.

But I need to tell you that you have a right not to testify. Nobody in this country can be made to take the witness stand and testify against themselves. In fact, if they don’t, the fact that they didn’t, may not be held against them in any way. It may not be considered in any way.

In other words, I can’t assume, in my mind, that you are guilty just because you decided not to testify. Okay. It’s your decision, but I don’t want you to say that I better do it, because he is going to think that I am guilty if I don’t do it. That won’t be the case.

I will just have to go on the evidence that I have heard but not the fact that he took the stand. THE DEFENDANT: I will take the stand. ³³⁴ THE COURT: You want to take the stand? It is up to you. You thought about your right to remain silent, right?

THE DEFENDANT: That is the only way for me to say what happened. THE COURT: That or to call witnesses. THE DEFENDANT: I don’t have any witnesses. THE COURT: I will give you time to think about this.

Whichever way you want to go. I don’t know. I don’t know if, for instance, if you have ever been convicted of a crime before. And I don’t want to know right now.

But if you take the stand and testify and you have been convicted of a crime before, they may ask you, they meaning the State may ask you about that. Not to prove that because you were guilty before that you are guilty now, but they may bring it up to show whether or not you should be believed or not. It goes to what they call veracity, believability. Does that help you decide whether you should or shouldn’t?

THE DEFENDANT: 1 don’t want to go up there. THE COURT: You don’t want to go up there? THE DEFENDANT: No. THE COURT: You remember, I tried to tell you, I thought you ought to get a lawyer. I am trying to tell you, I am attempting to tell you— THE DEFENDANT: I understand.

THE COURT: To do all the things as we move along. Okay. Do you want me to give you until one o’clock to come up with witnesses? I will do that for you.

THE DEFENDANT: No. THE COURT: That wouldn’t help you? THE DEFENDANT: No. There is no one to call anyway. No. THE COURT: Okay. Defense rests.

(Emphasis added). Morales’ record, revealed at sentencing, consisted of convictions of assault and battery, possession of PCP, possession ³³⁵ of PCP with intent to distribute, theft, disorderly conduct, and numerous motor vehicle offenses. The issue before this Court is whether the trial judge erred in the advice he gave Morales. The trial court informed the defendant, as required, that he had a right to testify or remain silent.

We conclude, however, that while the trial court was not required to further inform Morales that he could be impeached by his prior convictions if he took the witness stand, since the trial judge elected to do so, he should have done so correctly. Because the judge may have misled Morales regarding impeachment by prior convictions and, thereby, influenced him not to testify, we must reverse. A trial court is required to inform an unrepresented defendant of the constitutional right to remain silent or to testify. The defendant’s right to remain silent and refuse to testify in order to avoid the possibility of compelled self-incrimination is a fundamental constitutional right.

U.S. Const.Amend. V. See also Malloy v. Hogan, 378 U.S. 1 , 84 S.Ct. 1489 , 12 L.Ed.2d 653 (1964) (holding that the privilege against self-incrimination is made applicable to the states through the Fourteenth Amendment). Our State Constitution also grants a defendant in a criminal case the privilege against self-incrimination. Maryland Declaration of Rights, Article 22.

No adverse inference can be drawn from the exercise of this privilege. Maryland Code (1974, 1989 Repl.Vol.), Courts & Judicial Proceedings Article, § 9-107; Carter v. Kentucky, 450 U.S. 288 , 101 S.Ct. 1112 , 67 L.Ed.2d 241 (1981). An equally important corresponding constitutional right is the right of a defendant in a criminal case to testify in his or her own defense. Rock v. Arkansas, 483 U.S. 44 , 107 S.Ct. 2704 , 97 L.Ed.2d 37 (1987).

The decision whether or not to testify is a significant one and must be made with a basic appreciation of what the choice entails. If a defendant elects to remain silent, he or she waives the constitutional right to testify on his or her ³³⁶ own behalf. Conversely, if a defendant testifies, he or she waives the constitutional right to remain silent. Defendants represented by counsel are presumed to have been informed of their constitutional rights by their attorneys.

Therefore, the trial court is not required to advise represented defendants of their right to remain silent or testify. Stevens v. State, 232 Md. 33, 39 , 192 A.2d 73, 77 , cert. denied, 375 U.S. 886 , 84 S.Ct. 160 , 11 L.Ed.2d 115 (1963). When, however, it becomes clear to the trial court that a defendant “does not understand the significance of his election not to testify or the inferences to be drawn therefrom and where the presumption is rebutted,” the court must advise a represented defendant of the right to testify or to remain silent. Gilliam v. State, 320 Md. 637, 652-53 , 579 A.2d 744, 751 (1990), cert. denied, —: U.S. -, 111 S.Ct. 1024 , 112 L.Ed.2d 1106 (1991).

Unrepresented defendants can not be presumed to have been advised of, or know of, the existence of the constitutional right to remain silent or to testify in their own defense since they do not have attorneys to so inform them. Without knowledge of a right, a defendant can not waive it. Therefore, the trial court has an affirmative duty, albeit a limited