Powell v. State

BLOOM, Judge. A jury in the Circuit Court for Anne Arundel County (Lerner, J.) acquitted appellant, Wilbert Powell, of first degree murder but convicted him of armed robbery (technically, robbery with a deadly or dangerous weapon, Md.Code Ann., art. 27, § 488), attempted armed robbery, robbery, attempted robbery, assault with intent to rob, theft, attempted theft, assault and battery, and assault. After merging the seven related charges into the armed robbery conviction, the trial court sentenced Powell to 15 years. ³³² The first charge lodged against appellant, on 16 February 1989, was first degree murder. During his initial appearance in District Court on 17 February 1989, he was advised of his right to a preliminary hearing with respect to that charge.

Appellant requested a hearing which was held on 8 March 1989. The District Court found probable cause to believe that appellant committed the offense. On 23 February 1989 the State filed in the circuit court a criminal information charging appellant with murder, armed robbery, attempted armed robbery, robbery, attempted robbery, assault with intent to rob, theft, attempted theft, assault and battery, and assault. Appellant first appeared before the circuit court on 10 April 1989.

Because he appeared without counsel, the hearing was reset for 24 April 1989. There is nothing in the record to indicate what transpired at the hearing on 24 April 1989. The trial took place on November 7, 1989. At the close of all the evidence, appellant moved for an acquittal on all charges.

Appellant also moved to dismiss the second, fourth, and fifth counts of the information on the ground that he had not been advised that he was entitled to a preliminary hearing with respect to charges of armed robbery, attempted armed robbery, and assault with intent to rob. Both motions were denied, appellant was convicted and sentenced, and this appeal followed. Appellant contends: 1. The circuit court lacked jurisdiction on counts two, four, and five because the State charged by information, not indictment, and the defendant was never apprised of his absolute right to a preliminary hearing to determine probable cause. 2.

The trial court erred when it denied appellant’s motion for judgment of acquittal on counts two, three, four, five, six, and seven because the evidence was insufficient. ³³³ 3. The trial court erred by refusing to admit testimony of defense witness Jerome Thomas regarding a third party’s knowledge of the crime charged. Finding no merit in any of these contentions, we shall affirm. Facts On 13 February 1989 the body of Donald Jackson was found in his dormitory room at the Laurel Racetrack.

He had been the victim of a stabbing and strangulation. According to the testimony, beginning at 7:30 p.m. on 10 February 1989 appellant joined three other men, James Stokes, Danny Patterson, and the decedent, Donald Jackson, in Stokes’s room for an evening of drinking. Stokes testified that the last time he saw appellant was after 10 p.m. that evening, when appellant departed. Thereafter, the three men who remained continued to drink until Stokes and the decedent went to the decedent’s room to drink for about another fifteen minutes.

Stokes testified that it was about midnight when he left the victim’s room. Bruce Turk, an inmate who shared a multiple-person cell with appellant, testified that appellant had admitted to him that he murdered the decedent. At the close of the State’s case the defense moved for a judgment of acquittal which was denied. Appellant testified that during the course of the evening he argued with the decedent over a cigarette and that he asked the decedent for some money.

Appellant further testified that sometime after leaving Stokes’s room he returned to the victim’s room in order to apologize to him for their earlier argument. Appellant’s version of what then transpired was that the victim came at him with a knife, they tussled briefly, the victim cut his lip during the struggle, and then appellant left to go to the home of his friend, Edward Harding. Edward Harding testified that shortly after midnight appellant entered his home and both men slept until approx ³³⁴ imately 7:00 a.m. the next morning. According to Harding, appellant did not have any blood on his clothes.

Appellant then sought to introduce the testimony of Jerome Thomas, proffering that, while appellant was in jail awaiting trial, an individual named Uggy Wright told Thomas that he, Uggy, had killed Donald Jackson and that he was glad to see Nick Powell taking the blame for it. The court refused to allow the testimony, ruling that it was nothing more than a general statement that could not be considered trustworthy. Discussion I Appellant contends that the circuit court acted in excess of its jurisdiction when it entertained counts two, four, and five because he had never been advised of and therefore did not waive his right to a preliminary hearing to determine probable cause. Citing Md.Ann.Code art. 27, § 592 (amended 1983), 1 appellant argues that “the State’s use of a ³³⁵ criminal information, absent a knowing waiver by the Defendant of his absolute right to a preliminary hearing, rendered the Court below without jurisdiction to hear felony counts two, three [four], and five.” Appellant relies on Walters v. State, 242 Md. 235, 240 , 218 A.2d 678 (1965), wherein the Court stated that “an accused may not be prosecuted for a felony upon a criminal information unless he has first waived his right to action by the grand jury.” In Walters, the State did not obtain a waiver, but Walters was found not guilty of the felony.

Since the only crime for which Walters was convicted was a misdemeanor, the Court held that the procedure was proper under Maryland Rule 708. 2 Likewise, in Landaker v. State, 234 Md. 489 , 200 A.2d 44 (1964), the defendant argued that he was improperly tried on information. According to the Court Maryland Rule 708 which was in effect when the appellant was first charged in May 1962, provides explicitly that a person charged with the commission of a misdemeanor, who has not been indicted by the grand jury, may be prosecuted upon an information filed by the State’s Attorney (the rule goes on to provide that one charged with commission of a felony may not be so ³³⁶ prosecuted unless, pursuant to Rule 709, he waives action by the grand jury and asks an immediate trial). In the cases before us appellant was prosecuted only for misdemeanors and Rule 708 controlled. Id. at 491-492 , 200 A.2d 44 .

The State counters that “no motion under Maryland Rule 4-252 was ever raised concerning the absence of a preliminary hearing, or a defect in the waiver of such a hearing.” According to the record, appellant filed an omnibus motion which included a request that “all charges against this Defendant be dismissed for that there are defects in the institution of the prosecution and in the charging documents.” There is, however, no indication in the record that appellant ever attempted to obtain a ruling on this motion. The issue concerning the failure of the District Court or its Commissioner to advise appellant of his right to a preliminary hearing was first raised at the close of the State’s case-in-chief on a motion for judgment of acquittal. In a dialogue with the trial court, appellant’s counsel argued that this was a jurisdictional question, which may be raised at any time, rather than a mere defect in the institution of the prosecution, which must be raised by pre-trial motion. The trial judge disagreed and denied the motion, holding that the issue was waived because it should have been raised prior to trial.

Appellant asserts that because “[a] motion asserting failure of the charging document to show jurisdiction in the court or to charge an offense may be raised at any time,” pursuant to Maryland Rule 4-252(c), 3 “it was proper for Defendant’s trial counsel to raise this issue prior to present ³³⁷ ing Defendant’s case and it is properly heard now on appeal.” We find Smith v. State, 73 Md.App. 156 , 533 A.2d 320 (1987), helpful to our analysis of this issue. In Smith the defendant claimed that the District Court was without jurisdiction to prosecute him for driving under the influence of alcohol because he had not been advised of his right to a jury trial and therefore had never waived that right. The defendant contended that therefore the court’s jurisdiction had never been established and “any proceedings which it conducted with regard to any of the charges pending against him were a nullity.” Id. at 159 , 533 A.2d 320 . We rejected that argument, stating: Such error if in fact it did occur, was one of procedure in the court’s exercise of its jurisdiction which could have been corrected on direct appeal by the appellant from his conviction and sentence on May 3, 1982.

It was not a proper subject for review by writ of certiorari, which is a writ issued by a circuit court for the limited purpose of determining whether an inferior tribunal has acted without fundamental jurisdiction. Id. at 161 , 533 A.2d 320 [citations omitted]. Whether the procedural error was properly preserved for appeal was not before us in Smith. Appellant also cites Cooper v. State, 44 Md.App. 59 , 407 A.2d 756 (1979), for the correct proposition that a jurisdictional question may be raised at any time, including on appeal.

Unlike the case at bar, Cooper involved a defect in the charging document wherein it was alleged that the criminal information failed to charge an offense cognizable under Maryland law. Cooper’s trial counsel neglected to raise the issue. On appeal, Cooper argued that the defect was of a jurisdictional nature which may be raised at any time. We ruled that, although the second count of the information was duplicitous, “it does state an offense.” Id. at 68 , 407 A.2d 756 . ³³⁸ In fact, it improperly states two offenses; either of which the Circuit Court for Cecil County had jurisdiction.

The duplicity issue, were it properly before this Court, would have merit, but it is a matter that should have been raised and decided in the trial court. It may not be raised for the first time here. Id. A court that lacks fundamental subject matter jurisdiction is powerless to inquire into the facts, to apply the law, and to declare the punishment for an offense.

Williams v. State, 302 Md. 787, 792 , 490 A.2d 1277 (1985). According to the Court in Williams, supra, “It is fundamental that a court is without power to render a verdict or impose a sentence under a charging document which does not charge an offense within its jurisdiction prescribed by common law or by statute.” Id. at 791 , 490 A.2d 1277 [citations omitted]. In Williams , the defendant was convicted of robbery with a deadly weapon. He appealed, contending that the charging document failed to state an offense and was therefore fatally defective for lack of jurisdiction in the circuit court.

Appellant made no objection during the trial to the sufficiency or form of the charge contained in the criminal information. Id. The Court of Appeals, despite the requirement that every element of the charged crime must be set forth in the indictment, held that the information met the requirements of art. 21 of the Maryland Declaration of Rights, which requires that persons charged with crimes be informed of the accusations against them. Id. at 791 n. 1, 490 A.2d 1277 .

Therefore, the circuit court was fully vested with jurisdiction. Id. at 793 , 490 A.2d 1277 . In a companion case, the Court held that the challenged indictment “sufficiently characterized the statutory crime charged so that the ... offense [was] within the jurisdiction of the circuit court.” Hall v. State, 302 Md. 806, 809 , 490 A.2d 1287 (1985). ³³⁹ Although both cases dealt with the charging documents, the Court rejected the argument that the trial court’s jurisdiction should be subject to rigid and technical rules. Williams, supra, 302 Md. at 793, 490 A.2d 1277 ; Hall, supra, 302 Md. at 809, 490 A.2d 1287 .

In the case sub judice, the failure to advise appellant of his right to a preliminary hearing did not deprive the court of its fundamental jurisdiction. The information was not defective in charging the commission of crimes that came under the jurisdiction of the circuit court. What appellant complains of would constitute a procedural error in the invocation of the court’s jurisdiction, but such errors are waived unless properly and timely raised. “Where the claimed defect is not jurisdictional, it must be seasonably raised before the trial court or it is waived.” Williams v. State, 302 Md. 787, 792 , 490 A.2d 1277 (1985). In agreement with the trial court, we hold that, pursuant to Md. Rule 4-252(c), any right to assert a claim that might have