Ward v. State

Liss, J., delivered the opinion of the Court. On July 15, 1981, James Albert Ward, Jr., the appellant, was convicted in the Circuit Court for Anne Arundel County (Hopper, J.) in a trial before the court on Indictment No. 24.824 of arson, burglary and theft. On September 14, 1981, the appellant was convicted in the Circuit Court for Anne Arundel County (Hopper, J.) in a trial before the court on Indictments Nos. 24,822, 24,823, and 24,825 of various other burglary and theft charges. All of these cases were consolidated for sentencing and on September 28, 1981, the appellant was committed to the custody of the Division of Correction for twelve years for the arson 1 with concurrent sentences for the other offenses. 2 On appeal the appellant contends, in connection with his arson conviction at the July 15,1981, trial on Indictment No. 24.824 that: 1. the evidence was insufficient to sustain his conviction and, in connection with his convictions of unrelated burglary and theft offenses at the September 14,1981, trial on Indictment Nos. 24,822, 24,823 and 24,825 that: ⁶⁶⁶ 2. the court erred in failing to comply with Maryland Rule 731 c 3. the court erred in denying his motion to suppress certain evidence 4. the evidence was insufficient to sustain his convictions.

The record before us, in connection with the arson conviction under Indictment No. 24,824, shows that at about 3:00 A.M. on Sunday, January 25, 1981, firemen responded to a fire at the residence of Gary James, who was away at the time. Firefighter William Novosel and arson expert Carlos Downes both testified that the house had been ransacked before the fire of incendiary origin had been started. James told the court that his house had been in an orderly condition when he had left it the preceding day. James said a number of uncirculated two-dollar bills, which he collected, had been taken from the house.

The police followed the trail of these new two-dollar bills, which began showing up in the neighborhood stores, back to the appellant. After being arrested on unrelated charges, the appellant gave the police a statement admitting that he and David Mabeus had broken into the James’ house. 3 The charges against the appellant in connection with the other burglaries and thefts were contained in Indictment Numbers 24,822, 24,823 and 24,825. During the course of interrogation, the appellant made certain statements to the police concerning these charges. The statement as to the charges in Indictment No. 24,822 showed that at sometime between December 23, 1980 and January 2, 1981, the residence of Robert Yarbrough had been entered.

Coins worth $228.00 and other property worth $879.00 had been taken. The appellant’s statement to police concerning Indictment No. 24,823 showed that at sometime between December 24,1980 and January 4, 1981, the residence of Pat Freeman had been entered. Coins and other household items of an ⁶⁶⁷ undetermined value were taken. The information in Indictment No. 24,825 showed that at sometime between January 30, 1980 and February 1, 1981, the residence of Stephen Jones had been entered.

Jewelry and other items of an undetermined value had been taken. On February 4, 1981, the appellant was arrested in Baltimore City attempting to sell some of the silverware taken in the several crimes. Search of vehicles used by the appellant resulted in the recovery of some of the stolen items. After being arrested, the appellant described to the police how each of the residences had been entered at night and the items taken.

He said that the thefts had occurred because he needed money. He added that some of the money had been used to go skiiing in New York State. On August 28, 1981, the Circuit Court for Anne Arundel County (Wolff, J.) denied the appellant’s request for suppression of the statement he had made to the police and of the evidence that had been taken from his vehicles. Thereafter, the charges on Indictments Nos. 24,822; 24,823; and 24,825 were tried before the court on September 14, 1981, and submitted on "not guilty pleas with agreed statements of fact.” I. Sufficiency of the arson evidence The appellant contends that the evidence at his July 15, 1981, trial was insufficient to sustain his conviction of arson.

He points out that the court in rendering its verdict said: "... I’m persuaded beyond a reasonable doubt that the fire was of incendiary origin and that it occurred during the time that the defendant and Mabeus were in the premises and one or the other of them actually set the fire. And if while they were in there for purposes of committing a crime, it should, in fact, turn out that Mabeus set it, then the defendant, Ward, would be equally guilty as a principal in the second degree.” ⁶⁶⁸ The appellant argues: "Neither reason nor experience supports the contention that arson is a natural and probable consequence of burglary. Appellant cannot be held criminally liable for arson if the arson was a fresh and independent product of the mind of Mabeus and was outside the scope of their common purpose, namely, burglary.” The appellant concludes: "Without some evidence that Appellant himself set the fire or 'aided, counselled or procured’ the setting of the fire by Mabeus, Appellant’s conviction of arson cannot stand.” The State agrees with the appellant’s reasoning but urges, relying on Robinson v. State, 17 Md. App. 451 (1973) that even though the court erred in its reasoning, "its ultimate determination of guilt can still be affirmed on appeal.” In Robinson v. State, supra, we had commented at 17 Md. App. 460 : "... the verdict of the court would be sustained as not clearly in error, because evidence was present upon which the court could have arrived at the same conclusion upon other grounds.” The State points out that in the statement the appellant gave to the police, he said: " '...

I don’t know whether David did or not. I was drunk from drinking earlier I was smoking in the house and could have accidentially dropped a cigarette or even thrown it down when I finished smoking it. I normally don’t do this but in this case I wouldn’t care about the house.’ ” The State then argues: "The testimony of the expert 4 and the Appel ⁶⁶⁹ lant’s confession provided sufficient evidence to prove arson because it showed that Appellant either intentionally set a dangerous fire or set a dangerous fire with reckless and wanton disregard of the consequences in the terms of the dangers of bringing harm to others.” See Debettencourt v. State, 48 Md. App. 522 (1981). We agree and, for the same reasons as set forth in Robinson v. State, supra, find that the appellant’s contention concerning sufficiency of the evidence is not grounds for setting aside his arson conviction.

II

Failure to comply with Rule 731 c. At the commencement of the trial on September 14, 1982, the State advised the court that the appellant: ". .. would enter pleas of not guilty to the indictments but would waive a formal proof in this matter and will proceed on a statement of facts to be provided by the State as to the substance of these charges. It is further understood that Mr. Ward would have no testimony, evidence or statement of facts to present to the Court in his defense. Assuming that this is acceptable with the Court, we have agreed to make certain recommendations to the Court should Mr. Ward be found guilty of any or all of these offenses.” The following colloquy then occurred: "COURT: Is it an agreed statement of fact?

MR. NEWCOMB [Appellant’s trial counsel]: Yes, Your Honor. COURT: A not-guilty plea on an agreed statement of fact? MR.

NEWCOMB: That’s correct, Your Honor. MR. PATTERSON [Assistant State’s Attorney]: Your Honor .. . for the Court’s information, the reason we’re proceeding like this is because the ⁶⁷⁰ defendant wishes to reserve a possible appeal point on a Motion to Suppress, which was heard in this court. . . excuse me. . . which was heard by Judge Wolff on a prior date in these cases in which his Motion to Suppress was denied, and as a possible appeal ground to preserve that rather than entering a plea of guilty, . . . he’s decided to proceed ... in this manner and is acceptable to the State.” Now on appeal the appellant contends, relying on Sutton v. State, 289 Md. 359 (1981), that his September 14, 1981 trial on "not guilty pleas with agreed statements of facts” were "the functional equivalent” of guilty pleas. He argues that although the court did conduct a voir dire of him as to whether he understood the procedure being employed, the court did not ascertain, as required by Maryland Rule 731 c, if he was aware of the maximum penalties that could be imposed.

In its brief the State concedes that the proceedings were "the functional equivalent” of guilty pleas and that the court erred in not conducting the inquiry required by Maryland Rule 731 c. We do not agree with either the appellant or the State, although at first blush it might appear that our decision in Yanes v. State, 52 Md. App. 150 (1982) could stand for the broad proposition that any "not guilty plea with an agreed statement of facts” is now to be regarded as "the functional equivalent to a guilty plea.” In Yanes v. State, supra, we said at 52 Md. App. 155 : "... [T]he 'plea of not guilty on an agreed statement of facts,’ as employed by trial counsel for the appellant, cannot, under the particular circumstances, be construed as anything short of a plea of guilty, irrespective of what counsel chose to call it.” One problem with the State’s interpretation is that it overlooks the fact that on the occasions when a "not guilty plea with an agreed statement of facts” has been found to be "the functional equivalent of a guilty plea”, the findings have been based on the particular facts and circumstances of ⁶⁷¹ the situations in those cases. For example in Sutton v. State, supra, the Court of Appeals observed at 289 Md. 365 : "... after the case was called to trial the attorney for the petitioner asked whether the trial court wished 'to proceed by way of a guilty plea, on an Alford plea, or a not guilty statement of facts with the defendant not testifying and submitting.’ The trial court responded, 'Not guilty statement of facts.’ In response to this direction, the attorney for the petitioner tendered a plea of not guilty upon agreed facts.” The Court of Appeals then held at 289 Md. 366 : ".