Peterson v. State

ALPERT, J. Following a March 25, 2009 trial, appellant Lionel Lamont Peterson was convicted, by a jury sitting in the Circuit Court ⁵⁶⁸ for Wicomico County, of second degree assault, second degree assault on a law enforcement officer, theft under $500, failure to stop at the scene of an accident, failure to return or remain at the scene of an accident, failure of a driver involved in an accident to render reasonable assistance, and failure of a driver involved in an accident to report an injury. 1 On May 13, 2009, the trial court sentenced him to a total of three years in prison. 2 Appellant filed a timely notice of appeal. Appellant presents three questions for our consideration: 1. Did the trial court fail to comply with the requirements of Rule 4-215? 2. Did the trial court abuse its discretion when it refused to allow Mr. Peterson to call character witnesses and when it refused to allow Mr. Peterson’s brother to testify as an alibi witness? 3.

Did the trial court commit plain error when it gave an incorrect and misleading instruction on second degree assault of a law enforcement officer? For the following reasons, finding neither error nor abuse of discretion on the part of the trial court, we affirm the judgments. FACTS AND PROCEEDINGS On July 13, 2008, off-duty Wicomico County Sheriffs Office Lieutenant Robin Roberts and his wife went to a Wal-Mart store to purchase a toaster. As Roberts and his wife entered the store, they heard its anti-theft alarm, and Roberts observed an African-American male, later identified as appel ⁵⁶⁹ lant’s brother, Howard Peterson, running through the lobby while pushing an empty shopping cart.

Roberts watched the man exit the store and proceed to a black Cadillac; upon his arrival at the car, the man unfastened his pants and pulled out a large package of what Roberts believed to be stolen meat. Roberts walked to the car, identified himself as a police officer, and showed the man his credentials. He asked the man to retrieve what he had placed in the car and return to the Wal-Mart store. The man placed the large package of meat in the shopping cart and slammed the cart into Roberts.

He then fled toward the Wal-Mart store. While pushing the shopping cart away, Roberts noticed a second man, whom he identified at trial as appellant, walk around the Cadillac and get into the driver’s seat. Placing his hand on the driver’s side exterior mirror, Roberts again identified himself as a police officer and advised appellant to stop the vehicle. Appellant said nothing, but he backed the vehicle up, running over Roberts’ foot.

Roberts advised appellant he was under arrest, but appellant backed up farther and turned the steering wheel to the left, striking Roberts on his left knee and knocking him to the ground. 3 Without alerting police or rendering any assistance to Roberts, appellant exited the Wal-Mart parking lot in the Cadillac. Salisbury City Police Department Officer Tom Funk was dispatched to the Wal-Mart following a report that someone had struck a law enforcement officer with a vehicle. En route to the Wal-Mart store, Funk saw a vehicle fitting the broadcast description of the suspect vehicle driving in the opposite direction at a high rate of speed. Funk turned around and attempted to stop the vehicle; after reaching speeds of almost 100 miles per hour, Funk caught up to the vehicle and instigated a traffic stop.

He observed two African-American ⁵⁷⁰ males in the vehicle and saw one of them reach into the back seat and attempt to cover with a shirt a “very large pile of meat and shrimp.” Upon approaching the driver’s side of the vehicle and identifying himself as a police officer, Funk advised that he had stopped the vehicle because it matched the description of a vehicle involved in a suspected crime and because it had been traveling at a high rate of speed. Shortly thereafter, Officer John Dimare arrived at the scene, and the officers separated the two men and read them their Miranda 4 rights. Before Funk could ask the driver, whom he identified at trial as appellant, any questions, appellant told Funk that “he didn’t hit no one.” When Funk asked him what he meant by that, appellant told him that “some guy at Wal-Mart tried talking to him,” but that appellant did not do anything wrong. Appellant told Funk that he believed the man at the Wal-Mart to be a police officer.

After first denying to Funk that he had struck anyone with his vehicle, appellant admitted that Roberts “had made contact with his vehicle” and that he had seen Roberts fall. To Funk, the vehicle’s passenger, appellant’s brother, Howard Peterson, also admitted to having been at the Wal-Mart and to having had contact with a man he believed to be a police officer. While interviewing the brothers, Funk was alerted to a report of a theft or shoplifting incident from a Food Lion supermarket in Delmar. After Funk and Dimare reported their observation of packages of meat labeled with Food Lion stickers in the stopped vehicle, another officer transported Debbie Damico, a witness from Food Lion, to the location of the traffic stop; she identified appellant — with “100 percent” certainty — as a suspect in a theft of meat and seafood from the Food Lion store. 5 Appellant was then placed under arrest for assault and theft charges. ⁵⁷¹ After the State rested its case, appellant, representing himself, 6 called his brother, Howard Peterson, to testify on his behalf.

Howard testified that as he exited the Wal-Mart store and proceeded to the Cadillac on the date in question, he saw Roberts “just standing there” by Howard’s car. Roberts said he was a police officer and told Howard to “give me what you got.” Howard said that in response to Roberts’ demand, he went to his car and placed a piece of meat that had come from Food Lion into a shopping cart. Then, Roberts “shot by” him and may have tripped over a concrete pillar, falling to the ground. Appellant then backed up the car.

Howard saw Roberts “just sitting” on the ground, and Howard got into the car, which left the area. The jury found appellant guilty of all charges, save for first degree assault, and he was sentenced, as noted above. Additional relevant facts will be set forth as necessary. DISCUSSION I. As his first assignment of error, appellant contends that the trial court erred, by failing to comply with the mandates of Maryland Rule 4-215, when ruling that appellant waived his right to counsel by inaction and requiring him to go to trial without an attorney.

The State disagrees, arguing that the trial court met all the requirements of Rule 4-215 and correctly determined that appellant waived his right to counsel by his own inaction in failing to secure an attorney. The right to counsel is “ ‘basic to our adversary system of criminal justice, and ... is guaranteed by the federal and Maryland constitutions to every defendant in all criminal prosecutions.’ ” Grant v. State, 414 Md. 483, 489 , 995 A.2d 975 (2010) (quoting Parren v. State, 309 Md. 260, 281-82 , 523 A.2d 597 (1987)). To protect the fundamental right to counsel, as ⁵⁷² well as the correlative right to self-representation, Maryland Rule 4-215 7 was adopted; the Rule, which sets forth the “mechanisms by which a defendant can waive [his] right to counsel, establishes fixed and stringent procedures governing waiver in order to ensure that this right is protected.” Grant, 414 Md. at 489 , 995 A.2d 975 . The Rule provides a checklist of requirements to be completed before a judge may consider a defendant’s waiver of counsel valid.

The requirements of Rule 4-215 are mandatory, and a court’s failure to comply ⁵⁷³ strictly with the Rule constitutes reversible error. State v. Camper, 415 Md. 44, 55 , 998 A.2d 352 (2010). For a criminal defendant to waive his right to counsel effectively, he must “ ‘knowingly and intelligently’ forgo those relinquished benefits.” Brye v. State, 410 Md. 623, 634 , 980 A.2d 435 (2009) (quoting Faretta v. California, 422 U.S. 806, 835 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 (1975)). Not all waivers of the right to counsel, however, require an affirmative act on the part of a defendant.

A defendant may waive his right to counsel through inaction. Grant, 414 Md. at 490 , 995 A.2d 975 . In the present matter, the trial court implicitly ruled that appellant waived his right to counsel by inaction. Rule 4-215(d) provides that such a waiver may be found [i]f a defendant appears in circuit court without counsel on the date set for hearing or trial, indicates a desire to have counsel, and the record shows compliance with section (a) of this Rule, either in a previous appearance in the circuit court or in an appearance in the District Court in a case in which the defendant demanded a jury trial[.] Rule 4-215(a), in turn, requires the court to make a series of advisements to a defendant.

Finally, the court must determine whether his reasons for appearing in court without an attorney are meritorious. While there is no set inquiry that must precede a trial court’s finding of waiver of counsel by inaction, id. at 490 , 995 A.2d 975 , in determining whether the defendant’s reason is meritorious, the court’s inquiry “(1) must be sufficient to permit it to exercise its discretion ... (2) must not ignore information relevant to whether the defendant’s inaction constitutes waiver ... and (3) must reflect that the court actually considered the defendant’s reasons for appearing without counsel before making a decision.” Broadwater v. State, 401 Md. 175, 204 , 931 A.2d 1098 (2007) (quoting McCracken v. State, 150 Md.App. 330, 356-57 , 820 A.2d 593 (2003)). We review a trial court’s finding of waiver ⁵⁷⁴ under Rule 4-215(d) only for an abuse of discretion.

Grant, 414 Md. at 491 , 995 A.2d 975 . In order to assess whether the trial court abused its discretion in finding that appellant waived his right to counsel through his own inaction, we must examine the sequence of events that ultimately led to appellant’s self-representation at his trial. Following a bail review hearing and a preliminary hearing in the district court, appellant first appeared before the circuit court on October 3, 2008. During that brief appearance, the trial judge 8 asked appellant whether he had received a copy of the charging document, and appellant affirmed that he had.

The trial judge asked: Do you understand that you are charged with first degree assault which carries a maximum penalty of 25 years in prison, second degree assault which carries a maximum penalty of ten years in prison, a $2500 fine or both, second degree assault of a law enforcement officer which carries a maximum penalty of ten years in prison, a $5000 fine or both, theft involving less than $500 which carries a maximum penalty of 18 months in jail, a $500 fine or both, failing to stop at the scene of an accident, two charges of that, I guess one involving personal injury and the other involving property damage, perhaps. The maximum penalty for each of those two offenses is a year in jail, a $3000 fine or both, the charge of being involved in an accident and failing to render assistance, and failure to report the, I guess, bodily injury or death of an attended vehicle, person involved with an attended vehicle. Each of those two offenses carries a maximum penalty of 60 days in jail, a $500 fine or both. Do you understand all of that?

Defendant Peterson: Yes, sir. The court then advised appellant that he was entitled to be represented by an attorney at every stage of his case and that a lawyer would be of help advising him as to his rights and ⁵⁷⁵ any possible defenses, as well as preparing for trial, hearings, and sentencing. Again, appellant indicated his understanding. The court warned appellant that if he were going to hire a lawyer, the lawyer would be required to file an appearance within the next 15 days.

Appellant was told that [i]f you cannot afford to hire a lawyer, you can apply to the Public Defender’s Office who may be able to provide a lawyer to you without cost to you. If there is any possibility that you will need assistance from one of the attorneys through the Public Defender’s Office, you need to speak with the lady sitting over next to the wall who is from that office. She can set up an appointment or get the process started for you. If no one has filed a paper with the Court within the next 15 days indicating that he or she is representing you, we will enter a not guilty plea on your behalf, schedule your case for trial.

If you appear for that trial without a lawyer, you could be found to have waived your right to a lawyer and required to represent yourself if the reason you do not have a lawyer at that time is that you failed to make reasonable, timely and good faith efforts to hire a lawyer and because you failed to apply to the Public Defender’s Office in a timely fashion. Again, appellant affirmed his understanding of the court’s advice. The court announced itself satisfied that appellant understood what had been explained to him and the consequences for failing to make arrangements for a lawyer. Finally, the court advised appellant that “certain things” needed to be filed within 30 days, so appellant should “make arrangements for an attorney promptly so that you will be able to protect your various rights in that regard.” Appellant’s next appearance in court occurred on December 1, 2008.

Therein, he requested a continuance because he said he had contacted an attorney but had recently been laid off from, and then rehired to, his job and wanted to make sure he ⁵⁷⁶ could pay his lawyer. Although appellant requested a 90 day continuance, the court ruled that 60 days would be sufficient. On February 4, 2009, appellant again appeared in court, still unrepresented by counsel. Appellant stated that he had again been laid off, and he did not have enough money to retain counsel.

Notwithstanding that fact, however, he had not applied to the Office of the Public Defender (“OPD”). He thus asked for more time so he could obtain representation. The court ordered appellant to go to the OPD and make application for an attorney when he left the courthouse that day. The court postponed the trial for 30 more days and advised appellant that it was “the last postponement you are going to get for a lawyer, so it’s you are facing as I have advised you before on one of the charges, you are facing 25 years in prison.

There are a number of other charges that are pending against you. So you need to be ready to go with a lawyer.” The court further told appellant that in 30 days “you are going to trial whether you have one or not based on what you have told me.” Appellant asserted that he would be ready to go with a lawyer or ready to go representing himself. Appellant’s trial was called on March 25, 2009, and appellant again appeared without a lawyer. He told the court that he had gone to the OPD, and they had given him “a paper,” but when he went back on the date he had been told, he was turned away because he had not contacted the office more than 10 days prior to trial or brought in required documents.

The court recounted appellant’s previous appearances without a lawyer and the postponements given him for the purpose of obtaining representation. The court stated: “I don’t believe that you have a meritorious reason not to have a lawyer today, so I’m going to find that you have waived your right to a lawyer, and we will proceed this morning with the trial assuming the State is ready to do so.” After appellant stated his apparent concern about his lack of representation, the court reiterated: “I found that you do not have a sufficient reason, a meritorious reason for not having a lawyer today, considering the length of time that’s passed, the action that ⁵⁷⁷ you have taken, and the actions that you failed to take, so we are proceeding today with the trial.... I understand you may want to have a lawyer, but we are going to proceed today even though you do not have one.” Appellant, in his brief, asserts that the trial court failed to abide by the strict requirements of Rule 4-215 in three ways: 1) In failing adequately to advise appellant of the nature of the charges against him pursuant to Md. Rule 4-215(a)(3); 2) In ignoring information relevant to the waiver determination by failing to inquire in detail what appellant was told at his initial visit to the OPD and to review the written documentation that office had provided him, and; 3) In failing to find the reason appellant gave for not having counsel meritorious. We will address each contention in turn.

Appellant notes that he was charged with failing to stop for an accident that resulted in bodily injury, in violation of Md.Code (2009 Repl.Vol.), § 20-102(a)(1) of the Transportation Article (“TR”), and with failing to return and remain at the scene of an accident involving bodily injury, in violation of TR § 20-102(a)(2). 9 At his initial circuit court appearance, the trial court advised appellant that he was charged with “failing to stop at the scene of an accident, two charges of that, I guess one involving personal injury and the other involving property damage, perhaps. The maximum penalty for each of those two offenses is a year in jail, a $3000 fine or both.” Appellant contends that the trial court did not properly advise him of the nature of the charges against him. He argues that although he had been charged with one count each ⁵⁷⁸ of failing to stop at the scene of an accident involving bodily injury and faffing to return and remain at the scene of an accident involving bodily injury, the trial court, while correctly noting the two charges of failing to stop at the scene of an accident, incorrectly guessed that one involved personal injury and one involved “property damage, perhaps.” Although we are cognizant of the requirement for strict compliance with Rule 4-215(d), in our view, the trial court achieved strict compliance. Rule 4-215(a)(3) requires that a defendant be advised of the “nature of the charges” in the charging document.

It does not require a verbatim recitation of those charges. The trial court correctly advised appellant of the nature of the charges, i.e., two counts of faffing to stop at the scene of an accident, and correctly notified appellant that the potential penalty for each of those counts was one year in jail, a $3000 fine, or both. 10 The purpose of the advisement of the nature of the charges in the charging document and the allowable penalties — to ensure that a defendant is made aware of all pending charges and associated penalties, Brye, 410 Md. at 637 , 980 A.2d 435 — was adequately met by the circuit court’s advisement. Although the court may have mistaken the factual predicate of the two charges, it admitted its uncertainty of the facts of the incident by further characterizing the two charges as, “7 guess one involving personal injury and the other involving property damage, perhaps.” (Emphasis added). We are not convinced that the court’s parenthetical comments about the factual nature of the charges renders the advisement to appellant insufficient for the purposes of Rule 4-215, considering that the bases of the charges and the potential maximum penalties for those offenses were accurately conveyed to appellant. ⁵⁷⁹ Appellant’s second and third challenges to the trial court’s finding of waiver by inaction center on the court’s finding that his reason for appearing in court without an attorney was not meritorious.

Therefore, we consider them together. Once the court has achieved the required advisements in Rule 4 — 215(a)(3), before ruling that a defendant has waived his right to counsel by inaction, the court must further determine whether the defendant has presented a meritorious reason for his appearance without counsel. In determining whether the defendant’s reason is meritorious, the court’s inquiry (1) must be sufficient to permit it to exercise its discretion ... (2) must not ignore information relevant to whether the defendant’s inaction constitutes waiver ... and (3) must reflect that the court actually considered the defendant’s reasons for appearing without counsel before making a decision.

Broadwater, 401 Md. at 204 , 931 A.2d 1098 . If, pursuant to those mandates, the court finds the defendant does not have a meritorious reason, it may then determine that the defendant has waived his right to counsel by failing or refusing to obtain counsel and may proceed with the hearing or trial. Md. Rule 4—215(d). In this matter, the trial court found that appellant had no meritorious reason for his failure to retain counsel by the start of the March 25, 2009 trial.

Appellant takes issue with that determination, suggesting that the trial court did not permit him to explain adequately his appearance without counsel. Appellant says that the colloquy between him and the court on the first day of trial — in which he indicated he went to the OPD when it became apparent he could not afford to retain outside counsel and they gave him a “paper” — shows that the trial court ignored information relevant to the waiver determination. Appellant contends that it is apparent that he went to the OPD as instructed by the court, and, as such, the court should have asked further questions about that visit and the cutoff date they gave him for applying for counsel because, ⁵⁸⁰ if that date were wrong, “his failure to return to the office in a timely manner was certainly excusable.” Appellant additionally suggests simply that his reason for not having counsel was not non-meritorious. As noted above, we review the trial court’s ruling on a waiver of counsel by inaction on an abuse of discretion basis.

We find nothing in this record to indicate the court abused its discretion in finding that appellant did not have a meritorious reason for his failure to appear at trial without counsel. On the contrary, it appears that the trial court made every effort to ensure that appellant would appear at trial with an attorney, and appellant squandered every opportunity. When appellant first appeared in the circuit court on October 3, 2008, the court told him that if he were going to retain an attorney, that attorney would be required to file an appearance within 15 days and that if appellant required the services of the OPD, a representative from that office was then in the courtroom to assist him. He was warned that if he appeared at trial without an attorney, he could be found to have waived his right to an attorney.

Appellant said he understood these warnings, yet he next appeared in court on December 1, 2008, without counsel, and advised the court that he needed a 90 day continuance to hire a lawyer. The court granted him 60 days. By February 4, 2009, appellant had still not hired an attorney, complaining that he had been laid off from his job for a second time and that he could not afford to hire outside counsel. Knowing he could not afford a private attorney, however, he had still not made application with the OPD.

The court thus ordered him to go to the OPD upon leaving court and make immediate