Tilghman v. State

BYRNES, Judge. A jury in Dorchester County convicted appellant Montro Lorell Tilghman of robbery with a deadly weapon, robbery, carrying and wearing a handgun, use of a handgun in the commission of a robbery, theft, assault, and battery. After merging what it determined to be the lesser included offenses, the trial court sentenced appellant to fifteen years imprisonment for robbery with a deadly weapon, a consecutive ten years for use of a handgun in the commission of a robbery, and concurrent terms of ten and three years for battery and carrying and wearing a handgun, respectively. Appellant presents three questions for review, which we have combined and reworded for clarity: I. Did the trial court err in not taking action to assure that appellant was properly advised of the risk of impeachment attendant to exercising his constitutional right to testify, before appellant waived that right?

II

Did the trial court err in sentencing by a) failing to merge appellant’s conviction of battery into his conviction ⁵⁴⁸ for robbery with a deadly weapon? and b) failing to merge appellant’s conviction for carrying and wearing a handgun into his conviction for use of a handgun in the commission of a crime of violence? We answer “no” to question one and affirm the judgments. With respect to question two, we find that the trial court did not err in imposing the sentence for battery but did err in sentencing appellant for carrying and wearing a handgun; accordingly, we vacate that sentence. FACTS In the early morning hours of July 23, 1995, Dwayne T. Batson was sitting on the wall of the Pine Street amphitheater in the town of Cambridge, taking a break from riding his mountain bike.

Appellant approached Batson with a handgun and demanded that he turn over the bicycle. Batson resisted at first, but then complied. Appellant took the bike and left. Batson walked to the next street, where he encountered a woman whom he recognized to be a friend of appellant.

As Batson and the woman were engaged in conversation, appellant suddenly reappeared, holding a wooden board in one hand and the handgun in the other. Appellant charged after Bat-son, who ran. Appellant gave chase, eventually catching up to Batson, who then hit appellant with his fist. Appellant dropped the board, fell to his knees, and shot Batson in the right thigh with the handgun.

Batson fled, with appellant still shooting at him. He found his bicycle in some bushes, and rode it to his girlfriend’s house. His girlfriend called the police and an ambulance, which transported Batson to the hospital, where he was admitted for treatment. The police interviewed Batson at the hospital.

Batson told them that he had been robbed and shot by a person named “Montro.” The police compiled a photographic array, from which Batson identified appellant as his assailant. On September 20, 1995, appellant was charged by information with robbery with a deadly weapon; robbery; assault with intent to rob; assault with intent to murder; two counts ⁵⁴⁹ of carrying and wearing a handgun; two counts of use of a handgun in the commission of a crime of violence (one each for the robbery and assault with intent to murder charges); theft under $800.00; reckless endangerment; assault; and battery. Counsel entered her appearance on appellant’s behalf on October 24, 1995 and, the following month, filed a motion challenging appellant’s competency to stand trial. On December 22, 1995, Donald W. Nachand, Ph.D., of Clifton T. Perkins Hospital Center, examined appellant and determined that he was competent to stand trial under the standards set forth in Health General §§ 12-101, et. seq. of the Maryland Code Annotated (1994 Repl.Vol.).

In his December 27, 1995 report, Dr. Nachand assessed appellant as follows: The defendant is a 24 year old male with a sixth grade educational level. He has an established diagnosis of mild mental retardation, and he is illiterate. He is also reported to have had transient psychotic episodes in the past, but this is not a current problem. In interview today the defendant is alert and adequately oriented.

Both recent and remote memory are intact. His speech is clear and fluent, and his responses are relevant and coherent. There is no appearance of delusion or hallucination. He expresses no unusual thought content.

His mood is baseline and the underlying affect tone is normal. There is no unusual elevation of anxiety. He has an adequate understanding of the charges placed against him and of the possible consequences. He has an adequate understanding of the basic legal procedure.

He appears capable of cooperating with his attorney in the preparation of his defense. IMPRESSION: Mild mental retardation. Appellant’s counsel stipulated to Dr. Nachand’s report, and on January 18, 1996, the trial court ruled that appellant was competent to stand trial. When the case was called to trial, on April 18, 1996, the State entered a nolle prosequi to the assault with intent to rob and reckless endangerment charges.

At the close of the ⁵⁵⁰ State’s case, the trial court granted appellant’s motion for judgment of acquittal as to one charge of carrying and wearing a handgun. The trial judge then asked appellant’s counsel, “Would you like to advise your client?” Counsel took a moment to confer with appellant, and the following colloquy ensued: 1 COUNSEL: Mr. Tilghman, you and I have previously discussed your right to testify, is that correct? APPELLANT: Yes. COUNSEL: And you understand that you have a constitutional right to testify today if you so choose?

APPELLANT: Yes, Ma’am. COUNSEL: And you understand that if you choose to testify the state attorney may cross-examine you and the court might ask you questions for clarification? APPELLANT: Yes. COUNSEL: Do you understand if the States Attorneys cross exams you here, and if it’s indicated to me that you have a prior conviction that he will ask you about those convictions?

APPELLANT: Yes. COUNSEL: And do you understand that you also do not have to testify today? APPELLANT: Yes. COUNSEL: That if you decide you do not want to testify I’ll ask the judge to give the jury instructions that says just because you didn’t testify doesn’t mean your guilty, that the jury can’t ask that at all?

APPELLANT: Yes, Ma’am. COUNSEL: And that I would ask the judge to give that instruction and he would give that instruction? APPELLANT: Yes. ⁵⁵¹ COUNSEL: And, is it correct you and I have talked about whether or not you wish to testify or not? APPELLANT: Yes.

Appellant did not testify. The defense called three witnesses, two of whom were relatives of appellant; the other was a casual acquaintance. All three testified that they had witnessed an altercation between appellant and Batson, during which shots rang out, and that appellant was not carrying a gun at the time. The jury acquitted appellant of assault with intent to murder and use of a handgun in the commission of that crime and convicted him of all of the remaining charges.

The trial court merged the robbery and theft convictions into the robbery with a deadly weapon conviction and merged the assault conviction into the battery conviction. It then sentenced appellant as described above. This appeal followed. DISCUSSION I At the time of trial, appellant’s criminal record listed two convictions for possession of cocaine; two convictions for battery; and one conviction each for cruelty to animals, assault, resisting arrest, and burglary. 2 In her on-the-record advice to appellant about his right to testify, counsel commented upon his risk of being impeached with his prior convictions.

Appellant now contends that the advice that his attorney gave him about impeachment was legally incorrect in that it implied that, if he were to testify, all of his prior convictions could be used to impeach his credibility, when that ⁵⁵² was not the case. 3 He maintains that, as soon as the trial court heard counsel impart this erroneous advice, it was required to intervene to assure that he was properly informed about the risk of impeachment that he might face on the witness stand. This was especially so, appellant contends, given that the trial judge knew that he was mildly mentally retarded and had invited counsel to place her advice to appellant on the record. 4 Finally, appellant concludes that the trial court’s error in failing to intervene prejudiced him by causing him ineffectively to waive his constitutional right to testify. ⁵⁵³ As we shall explain, we find that the trial court did not err, as the circumstances in this case did not require it to take action to advise appellant about his potential for being impeached with his prior convictions or to direct counsel to re-advise appellant about her client’s risk of impeachment. We reach that conclusion assuming, but not deciding, that appellant’s counsel’s advice was not a legally correct admonition to appellant about his risk of being impeached with his .prior convictions. (i) The Fifth, Sixth, and Fourteenth Amendments to the United States Constitution guarantee the accused in a criminal case the right to testify on his own behalf.

Rock v. Arkansas, 483 U.S. 44, 51-53 , 107 S.Ct. 2704, 2708-10 , 97 L.Ed.2d 37 (1987). As the right to testify is personal to the defendant, it may only be waived by him, and not by his counsel for him. Jones v. Barnes, 463 U.S. 745, 751 , 103 S.Ct. 3308, 3312 , 77 L.Ed.2d 987 (1983). Moreover, because the right to testify is “ ‘essential to due process of law in a fair adversary process,’ ” see Rock v. Arkansas, supra, 483 U.S. at 51 , 107 S.Ct. at 2709 , quoting, Faretta v. California, 422 U.S. 806, 819, n. 15 , 95 S.Ct. 2525, 2533, n. 15 , 45 L.Ed.2d 562 (1975), it may only be waived knowingly and intelligently, under the waiver standards established for fundamental constitutional rights in Johnson v. Zerbst, 304 U.S. 458 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1938); see also Schneckloth v. Bustamonte, 412 U.S. 218, 241 , 93 S.Ct. 2041, 2055 , 36 L.Ed.2d 854 (1973).

For the waiver of a fundamental right to be made knowingly and intelligently, the accused must have a “sufficient awareness of the relevant circumstances and likely consequences” that forfeiting his right entails. Brady v. U.S., 397 U.S. 742, 748 , 90 S.Ct. 1463, 1469 , 25 L.Ed.2d 747 (1970). The right to testify is “a necessary corollary to the Fifth Amendment’s guarantee against compelled testimony.” Rock v. Arkansas, 483 U.S. at 52 , 107 S.Ct. at 2709 . These constitutional rights are inextricably intertwined, as a criminal defendant’s decision whether to testify necessarily involves ⁵⁵⁴ invoking one constitutional right and waiving the other.

Thus, in virtually every criminal trial, there comes a time when' the defendant must choose between two reasonable alternatives, each of which requires him to waive a fundamental constitutional right: [These] two rights, each of Constitutional dimension, are necessarily in conflict. A defendant must choose between them. If he elects to testify, and thus subject himself to the possibility of self-incrimination through cross-examination, he gives up — waives—his equal but opposite right to refrain from compelled self-incrimination; if, on the other hand, to avoid that prospect, he elects not to testify, he obviously gives up — waives—his right to tell from his own lips his side of the story. Precisely because the election of one of these Constitutional rights acts as a waiver of the other, the decision to choose between them is a critical one for the defendant and must therefore reflect, at a minimum, an awareness of these correlative rights and a basic understanding of what each entails.

Hamilton v. State, 79 Md.App. 140, 142-43 , 555 A.2d 1089 , 1090 cert. denied, 316 Md. 550 , 560 A.2d 1118 (1989). In the trial of a pro se criminal defendant, the court must advise the defendant of his constitutional rights to testify and to remain silent, so that he may make an informed choice to invoke one right and waive the other. Williams v. State, 110 Md.App. 1, 30 , 675 A.2d 1037, 1053 (1996); Martin v. State, 73 Md.App. 597, 602 , 535 A.2d 951, 954 (1988). When the defendant is represented by counsel, no such requirement exists.

See United States v. Teague, 953 F.2d 1525 , 1533 n. 8 (11th Cir.), cert. denied 506 U.S. 842 , 113 S.Ct. 127 , 121 L.Ed.2d 82 (1992); United States v. Martinez, 883 F.2d 750 (9th Cir.1989), vacated on other grounds, 928 F.2d 1470 cert. denied, 501 U.S. 1249 , 111 S.Ct. 2886 , 115 L.Ed.2d 1052 (1991). On the contrary, Maryland law recognizes a presumption, premised on the permitted inference that attorneys, as officers of the court, “do as the law and their duty require them,” that ⁵⁵⁵ a represented defendant has been told of his constitutional rights, by his attorney. Stevens v. State, 232 Md. 33 , 192 A.2d 73 , cert. denied, 375 U.S. 886 , 84 S.Ct. 160 , 11 L.Ed.2d 115 (1963). Thus, even though the right to testify must be waived by the defendant personally, the trial court is entitled to assume that counsel has properly advised the defendant about that right and the correlative right to remain silent and, if the defendant does not testify, that he has effectively waived his right to do so. 5 Circumstances may occur, however, that require a trial court to take measures to assure that a represented defendant has been properly advised of his rights to testify and to remain silent.

We first recognized that such a duty may arise in Hamilton v. State, supra. There, a mentally limited defendant’s words and conduct in court made it evident that he did not understand that, if he did not testify, guilt could not be inferred from his silence. The defendant testified, and was convicted of first-degree rape, kidnaping, and assault with intent to disable. In an opinion written by Judge Wilner, we reversed, finding that the defendant’s waiver of his right to remain ⁵⁵⁶ silent was invalid, as it had not been knowingly and intelligently given.

In so doing, we held that the presumption that a represented defendant has been properly advised of his constitutional rights to testify and to remain silent is rebuttable. The presumption will be overcome if, through ... inquiry [by the court] or otherwise, it appears to the court that either such advice was not, in fact, given or that the defendant does not understand what he has been told ... Id. at 150, 555 A.2d 1089 . When that occurs, the trial court must “take further action to assure itself that the defendant is properly advised and does understand the nature and consequences of the election he must make.” Id.

In Gilliam v. State, 320 Md. 637 , 579 A.2d 744 (1990), cert. denied, 498 U.S. 1110 , 111 S.Ct. 1024 , 112 L.Ed.2d 1106 (1991), the defendant argued likewise that the trial court had erred in not intervening to explain his constitutional right to testify, even though he had been represented by counsel in his bench trial for first-degree murder. Specifically, the defendant contended that, when his counsel imparted ambiguously worded advice, on the record, suggesting that, if he elected not to testify, he would automatically be acquitted, the trial court was required to take steps to inform him accurately of the consequences of invoking his right to remain silent. The Court described the circumstances in which a duty will arise for the trial court to intervene to advise a represented defendant about his constitutional testimonial rights: [O]nly where it becomes clear to the trial court that the 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 must the court advise the accused of his right to testify or to remain silent. 320 Md. at 652-53 , 579 A.2d 744 . Holding that the trial court had not been required to take action, as the advice that had been given could not reasonably have been construed to imply that the defendant would be guaranteed a not guilty verdict if he did not testify and that, in any event, any ambiguity in the ⁵⁵⁷ advice did not materially affect the defendant’s decision to remain silent, the Court observed: Where there is no indication that the defendant has a misperception of his right to remain silent and the effect of exercising that right, and where he expressly indicates he has been fully advised of and understands the right, as well as the effect of a waiver, then an ambiguous statement made by the defense counsel during an “on the record” explanation does not result in reversible error if the trial court fails to intervene and clarify counsel’s ambiguous statement.

Id. at 656 , 579 A.2d 744 . It is not necessary that a defendant be told of the potential for impeachment with prior convictions for his decision whether to testify to be made knowingly and intelligently. Martin v. State, 73 Md.App. 597 , 535 A.2d 951 (1988), at 597, 535 A.2d 951 (Wilner, J.). The risk of impeachment is not a “fundamental attribute” of the right to testify, knowledge of which is essential to an understanding of the right itself.

Hamilton, 79 Md.App. at 143 , 555 A.2d 1089 . Rather, it is a potential consequence of exercising the right to testify that is of largely strategic, not essential, import. Nevertheless, once the trial court undertakes to inform a defendant about impeachment in advising him of his rights to testify and to remain silent, it must do so correctly. In Morales v. State, 325 Md. 330 , 600 A.2d 851 (1992), the trial court warned an unrepresented defendant that, if he elected to testify and he had been convicted of a crime in the past, “the State may ask you about that.” Id. at 334 , 600 A.2d 851 .

The defendant had many prior convictions, none of which were known to the court and only one of which could have been used to impeach him. Before the trial court advised him, the defendant stated that he wished to testify. Upon hearing the court’s advice, he changed his mind, and did not take the stand. The jury convicted him of possession of cocaine with intent to distribute and conspiracy to distribute cocaine.

On appeal, the defendant argued that he had not knowingly ⁵⁵⁸ forfeited his right to testify, as he had done so in reliance upon the trial judge’s legally erroneous admonition about the prospect that he would be impeached if he did testify. Observing that “[t]he decision whether or not to testify is a significant one and must be made with a basic appreciation of what the choice entails,” id. at 335 , 600 A.2d 851 , the Court held that the trial court had erred in advising the defendant incorrectly and had thereby tainted the defendant’s decision-making with inaccurate information, rendering his waiver unknowing and involuntary. Thanos v. State, 330 Md. 77 , 622 A.2d 727 (1993), like this case, presented the question whether a duty arose on the part of the trial court to intervene to correctly advise the represented defendant about the risk of impeachment with prior convictions. The defendant’s counsel advised him, on the record, that, if he elected to testify, the prosecutor “could inquire into any prior convictions that [he] might have.” Id. at 90 , 622 A.2d 727 .

The defendant did not testify. He was convicted of first-degree murder and sentenced to death. Several of the defendant’s prior convictions were not impeachable offenses. On appeal, he argued that his counsel had stated inaccurately the effect of his invoking the right to testify; consequently, he waived his right to testify without the correct legal information necessary to make a knowing and intelligent choice.

The Court took the same approach to this ineffective waiver argument that it had taken in Gilliam , opining that the defendant, who had announced in open court, before the start of trial, that he had no intention of ever testifying, had not been influenced by his counsel’s “questionable” advice in deciding not to testify. 6 ⁵⁵⁹ Against that background, we examine the question whether, in the circumstances of this case, the trial court erred in not taking action, before appellant chose between testifying and remaining silent, to assure that he had an accurate understanding of his potential for being impeached with his criminal record on cross-examination. (ii) As the Court of Appeals made plain in Thanos and Gilliam , the question whether a trial court committed error in not assuring that a represented defendant was properly advised of his rights to testify and to remain silent is only brought to bear if the defendant waived one of those rights as a direct result of being misadvised by counsel. The holdings in those cases did not rest on the issue of the trial court’s duty to intervene; rather, they were premised on the issue whether the advice given to the defendant by his attorney caused the defendant to decide not to testify. As the Court found that neither defendant gave up his right to testify on the basis of the legal advice that he received, it did not need to analyze closely the existence and scope of a duty on the part of the trial court to intervene.

The factors that led the Court of Appeals to conclude that the defendants in Gilliam and Thanos were not influenced by the allegedly ambiguous and erroneous advice given to them by their attorneys in deciding to waive their right to testify are not present here. Appellant did not direct and devise his defense, as was the case in Thanos , nor did he ascribe a meaning to his counsel’s advice so ludicrous as to make plain that the advice could not have had any impact on his decision to remain silent, as did the defendant in Gilliam . To the contrary, the record reveals that appellant, who, like the defendant in Hamilton , was mentally limited, looked to his attorney for guidance and followed it. In addition, although counsel entered her appearance six months before trial and met with appellant to discuss his rights at some point before she advised him on the record, there is no evidence of in-depth and extensive attorney-client discussions, such as those that ⁵⁶⁰ took place in Gilliam , from which we might infer that appellant must have learned the very consequence of exercising his constitutional right to testify that he now claims not to have known.

While this case does not present clear-cut evidence that appellant’s election to remain silent resulted directly and solely from the advice that he was given about impeachment with prior convictions, as existed in Morales , we cannot say that appellant’s decision to waive his right to testify was not influenced by his attorney’s “on the record” advice. Moreover, the record is devoid of evidence that demonstrates or from which we might infer that appellant made his decision to testify on a basis other than the advice that was imparted to him by counsel, during the trial. For that reason, and mindful that the issue raised by appellant is of a constitutional dimension, see Williams v. State, supra, at 34-35, 675 A.2d 1037 , we turn to the question whether the trial court committed error that resulted in appellant ineffectively waiving his right to testify. (iii) Appellant maintains that the holdings in Morales and Hamilton together compel the conclusion that the trial court was required to take action to correct appellant’s counsel’s allegedly erroneous advice, so that he would have had a true picture of the risk of impeachment that he might face if he were to testify.

While we agree that, in certain well-defined and limited circumstances, the trial court must intervene to assure itself that a represented defendant understands the risk of impeachment attendant to exercising the constitutional right to testify, we do not agree that such a circumstance existed here. We explain. The Court’s reasoning in Morales makes plain that, from the standpoint of assessing the validity of a defendant’s waiver of the constitutional right to testify, there is no logical distinction between a defendant who elects to remain silent because he has been given incorrect legal advice about the ramifications of testifying and a defendant who makes the same ⁵⁶¹ election while in a state of confusion about the ramifications of testifying. Neither defendant possesses the knowledge and understanding of the constitutional right that he is in the process of deciding to exercise or to forfeit that would permit him to make an informed and intelligent choice.

In one case, the requisite information is absent because incorrect information was supplied in its place. In the other, it is missing because it was never conveyed in such a way as to be understood. Only the sources of the lack of knowledge differ. That having been said, irrespective of why a represented defendant may not have the knowledge of his right to testify so as to effectively waive that right, his lack of knowledge, in and of itself, does not translate into a duty on the part of the court to assure that the defendant understands the nature and consequences of his election.

As we explained in Hamilton , the presumption of proper advice by counsel, which encompasses a presumption that the defendant has been informed correctly about his right to testify, will only be overcome, and a duty on the part of the trial court to take steps to make certain that the defendant is correctly advised of his rights will only arise, if it becomes clear to the court that the defendant does not understand the constitutional right that he is deciding to exercise or to waive. The defendant’s state of mind alone does not obligate the trial court to intervene. Rather, the court must be placed on clear notice that the represented defendant does not understand his rights before such a duty will arise. There are several reasons why this is so.

First, when we recognized, in Hamilton , that a trial court will in some instances be required to see to it that a represented defendant understands his constitutional right to remain silent, we were advancing the principle that a court ought not knowingly allow a violation of a defendant’s fundamental constitutional right. As Judge Wilner stated, when it appears to the trial court that the defendant does not understand the significance of his decision whether to testify, the court “cannot simply ignore that fact;” instead, it must act affirmatively to head off an ⁵⁶² imminent violation. Hamilton, 79 Md.App. at 150 , 555 A.2d 1089 . If the trial court is unaware that the defendant is about to forfeit his constitutional right to testify or to remain silent without understanding the significance of doing so, however, it is not in danger of participating in or acquiescing to a constitutional violation; in that circumstance, the reason underlying the duty to intervene is not implicated. 7 Second, any requirement on the part of the court to ascertain that a represented defendant understands his constitutional testimonial rights before it becomes apparent that the defendant does not understand those rights is in direct conflict with, and would effectively eliminate, the presumption that a represented defendant has been properly advised by counsel.

A trial court could only carry out such a duty by assessing the defendant’s