Watkins v. State

WILNER, Judge. Appellant was convicted by a jury in the Circuit Court for Prince George’s- County of second degree murder, false imprisonment, and use of a handgun in the commission of a crime of violence. Upon these convictions, he was given consecutive prison sentences of 30 years, 10 years, and 15 years, respectively. In this appeal, he makes the following five complaints: “I. The trial court’s failure to conduct an adequate inquiry into appellant’s pretrial claim of ineffective assistance deprived appellant of the right to effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution.

II

The court below erroneously admitted defendant’s statements into evidence when those statements had been obtained from him through trickery and artifice and in violation of an agreement between his attorney and the prosecutor that was not super-ceded by a waiver of his Miranda rights. ⁷¹⁰ III. The court should have granted appellant’s motion to strike the testimony of the two State’s witnesses who twice violated the rule on witnesses and did so, in one of those instances, at the behest of the Assistant State’s Attorney.

IV

The court below erred in denying appellant’s motion for a judgment of acquittal on the false imprisonment count because the State adduced no evidence from which a reasonable juror could conclude that Harris had been imprisoned or detained against his will at any time. V. The trial court committed plain error when it failed anywhere in its final instructions to provide the jury with any guidance whatsoever on the critical evidentiary issues in the case.” As we find no reversible error, we shall affirm. The charges against appellant arose from the execution-like, drug-related slaying of one Eddie Harris on June 28, 1981. The dramatis personae are appellant, the victim Harris, Darren Brigman, and Ronnie Wilder, all of whom were involved in the trafficking of heroin, and Detective John San Felice, who interrogated appellant on three occasions.

The evidence showed that on the day of the murder, appellant met Harris at a schoolyard in the District of Columbia, persuaded Harris to accompany him to test some drugs, drove with him, Brigman, and Wilder in Brigman’s car into Maryland, led him into a wooded area, and shot him five times. The motive, as asserted by the State, was a bit complex. Some six months before the killing, appellant had been given an ounce of pure heroin on consignment to cut and bag for street sale. The street value of the heroin was about $25,000.

Appellant had Brigman and Wilder dilute and bag the heroin, which appellant then apparently sold. Due to his own financial difficulties, however, appellant was unable to pay his supplier; he spent the money earned from the resale without paying for the cost of the goods sold. ⁷¹¹ As a defense to the imposition of the supplier’s anticipated collection efforts, appellant desired to convince the supplier that Harris had stolen the money from Brigman. Somehow, the episode of June 23, was part of that endeavor. Most of the damaging evidence against appellant came from Brigman, Wilder, and San Felice.

(1) Assistance of Counsel Although the crimes charged to appellant occurred in June, 1981, he was not indicted until December, 1982. Counsel, in the person of William G. Parker, Jr., entered his appearance on March 2, 1983. He was privately retained and represented appellant throughout the six-month pre-trial period (trial commenced September 26, 1983). On September 22 — four days before trial — appellant wrote to the court clerk, complaining that Mr. Parker “does not have my best interest at heart”, that their relationship “is suffering a constant conflict of interest”, and that “he has destroyed my confidence in his desire to render me adequate assistance of counsel.” He complained in particular that Parker had “refused to inform me of all the evidence against me and will not enlighten me regarding the extent of his pre-trial preparations.” He stated that counsel had urged him to “plead guilty to charges I am not guilty of.” He asked that Parker be removed from the case, asserting that “this is not a delay tactic, but an attempt to salvage my 6th and 14th amendment rights.” On the morning of trial, just after the jury was sworn, appellant repeated his request that Mr. Parker be discharged, and asked that a public defender be appointed in his place.

In support of that motion, he told the court: “Your Honor, the following list of circumstances surely demonstrates Mr. Parker’s deliberate abdication of his ethical and legal duty to faithfully represent me in this matter. Mr. Parker has not confided in me regarding one iota of the pretrial preparations, leaving me to think there has been no investigation of my case by Mr. Parker ⁷¹² whatsoever. There has been no witness conference. I have only been shown a very very small portion of the discovery evidence.

Mr. Parker has not interviewed State’s witnesses. If he has any information in this regard, he has refused to inform me of it. My parents are angry and disgusted with Mr. Parker’s conduct and lack of progress. Mr. Parker’s attitude toward both my parents and myself has been totally unprofessional.

Mr. Parker has adopted an attitude of negativity with me because I do not have information, names, dates, et cetera, that he says- I should know. Mr. Parker has constantly pressed me to testify for the government in the case regarding things I know nothing of and he has insisted I help the State’s Attorney in another prosecution I know nothing about. His advice to me thus far is to take a plea to twenty-five years on a charge I am not guilty of and to cooperate with the government. My parents have paid Mr. Parker from their meager savings and he has taken advantage of all of us.” In response, counsel pointed out that he had been representing appellant for two years, that he had been to see appellant “on immeasurable instances”, and had made his office available to appellant’s parents at least once a week.

The problem, he said, was that he got no cooperation from appellant. Specifically: “I have asked Mr. Watkins to furnish me with a list of witnesses. He has only given me one. That individual has been summoned.

I have asked Mr. Watkins to give me places and names of individuals who could say where he was on the day the instances took place. He has failed to do so. I have asked him to give me any information which would be beneficial to me in planning his defense. He has failed to do that.

I wrote him a letter, which I believe is part of the Court jacket, copy to Your Honor, copy to his parents, which said that I would come over and see him on the 13th day of September and if he didn’t have information then for me in order to prepare his defense, I would ask to withdraw from the case. When I ⁷¹³ went over to see him, he furnished me with certain information, which he said I could prove by way of the polygraph examination. With the assistance of Mr. David Simpson, who I have been in contact with in this case, we took Mr. Watkins to the Prince George’s County Police Department, where he took a polygraph examination, which showed he was deceptive on almost every question, especially the information he gave me relative to preparing his defense. I have gone over with Mr. Watkins in detail the State’s case.

I have not only shown him, but his parents, all the statements which have been given and his parents, as a matter of fact, have a copy of all the statements that have been given by the State’s witnesses to Mr. Simpson and to the Police Department. Your Honor, as best I could, with no cooperation from Mr. Watkins, I believe I have amply prepared his defense. I’d also add that Mr. Watkins has constantly given his parents one bit of information, while he has made certain statements to me which may make him or may not make him culpable of certain offenses, which I certainly couldn’t talk to anyone about, including his parents, because of attorney-client privilege. He’s aware of that and constantly has been using his parents as a wedge between he and I.” The prosecutor, Mr. Simpson, stated that he had provided “open file” discovery to Mr. Parker, and that Mr. Parker “has everything that I have.” He said that Mr. Parker had been in contact with him “on a three times a week basis”, and that he had been given “copies of statements and reports that I wouldn’t even normally do as far as utilizing our own facilities.” He confirmed that Mr. Parker was instrumental in persuading him to give appellant a polygraph examination, “which I don’t normally do,” because “Mr. Parker convinced me that perhaps because of things he found out, it might shed some further light in this case”.

Continuing “[t]he State went through quite a bit of trouble ⁷¹⁴ and expense to have the Defendant administered the lie detector test, which he flunked miserably.” Finally, the court was informed that counsel had spoken with all of the “civilian witnesses,” but that there were two witnesses who were inmates in institutions outside of Maryland that neither the prosecutor nor Mr. Parker had interviewed. The reference, apparently, was to Brigman and Wilder, who had been mentioned extensively in the statements appellant had given to the police, which statements were, of course, given to Mr. Parker. Upon this record, the court concluded: “Well, Mr. Watkins, sometimes people ask for a change of attorney in order to get a delay of the trial. The only basis for striking the appearance of your attorney is whether or not he has been ineffective.

And in this case, from looking at the Court jackets,, listening to both of the attorneys tell me what has happened in the past, there is absolutely no question in the Court’s mind that Mr. Parker has been effective, most effective. Now, the Constitution says you are entitled to effective representation of the Defense lawyer. You don’t have to like him, you don’t have to love him. The law does not require that.

The law requires he give you effective representation and everything I have seen so far, Mr. Parker has acted with speed, he has acted with diligence and he has tried to prepare this case as best he can and he’s done everything that the law would require him and the Canons of Ethics would require him to do.” Appellant now complains of the “trial court’s failure to conduct an adequate inquiry into appellant’s pretrial claim of ineffectiveness.” Recognizing that claims of ineffectiveness of counsel are normally left to post-conviction proceedings, he nonetheless asks us to follow the lead of the District of Columbia Court of Appeals in Monroe v. United States, 389 A.2d 811 (D.C.) cert. den. 439 U.S. 1006 , 99 S.Ct. 621 , 58 L.Ed.2d 683 (1978), and direct that such claims be addressed preliminarily by the trial court when based on ⁷¹⁵ pre-trial lapses — inadequate preparation, lack of communication, and the like. We have no particular difficulty with a trial court addressing and resolving such a claim before trial if that can be done efficiently, effectively, without undue prejudice to the defendant, and without undue strain upon the attorney-client relationship. As the Monroe court pointed out, 389 A.2d at 818 , the “assertion of a pretrial claim of ineffectiveness presents the trial judge with the opportunity to take steps to eliminate any deficiencies in the representation of counsel before the resources of the judicial system have been invested in a full-blown trial.” We do not believe, however, as the Monroe court did, that the trial courts have a “constitutional duty” to conduct a specific evidentiary-type inquiry “whenever they are confronted with those types of allegations.” Id. 821. Indeed, there may well be circumstances when it would be inappropriate for the court to do so.

Complaints such as this necessarily pit lawyer against client; they may require the disclosure of confidential communications, other facts or statements inadmissible in evidence, and attorney work-product, thought processes, and tactical decisions, some or all of which could be very harmful to the defendant if disclosed in advance of trial. All of these things, as well as the amount and effect of the attendant delay in the trial itself, must be taken into account in deciding whether and how to address a complaint about ineffective assistance of counsel at that preliminary stage. Here, we think that the court did make the inquiry now sought by appellant. It listened to his complaint and to the response.

Nothing more was asked of it; no further evidence was proffered by anyone. It had all the information it needed to determine whether appellant’s allegations were true and whether his complaints were valid. It decided that they were not, and upon this record, we cannot conclude that it erred in so finding. This would especially be true under the standards for determining the issue ⁷¹⁶ announced by the United States Supreme Court in Strickland v. Washington, — U.S. —, 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), which, we note, are somewhat tighter than those applied by the D.C. Court in Monroe.

(2) Appellant’s Inculpatory Statements Appellant made four statements that were admitted into evidence. In this appeal, he complains about three of them. The first statement was an oral one given to Detective San Felice on October 28, 1981. Appellant had been arrested by District of Columbia police officers and taken to a station-house in the District.

San Felice, who went to the station-house ostensibly to serve appellant with the Maryland warrant issued in this case, interviewed him there. He advised appellant of the charge and read him his various rights. Initially, appellant told San Felice that he was not involved in Harris’ murder. He said that he had seen Harris on June 23 at the school playground, that Harris had a gun, that appellant was afraid that Harris intended to rob him, and that he ran away.

He knew, nothing of the murder. San Felice then told appellant, falsely, that he (San Felice) had spoken with Darren Brigman and one Alonzo Fields, and that they had implicated him in the murder. At that point, according to San Felice, appellant changed his story; he accused Brigman and Fields of having committed the murder, and asserted that “it was in relation to Harris having set up [Brigman] to be robbed of some drugs and some jewelry____” He further stated that Fields and Brig-man “were stupid because they had taken Harris away from the playground in front of a crowd.” Appellant refused to put his statement in writing. He told San Felice that a few months earlier, he had given a written statement to the police on another matter and had been hurt by doing so.

Two days later, San Felice returned to the District, took custody of appellant, and drove him back to a Prince ⁷¹⁷ George’s County police station. He was again advised of his various rights, and initially he declined to say anything. Later that afternoon, however, after being told of his rights twice more, he confirmed, with some greater elaboration, what he had told San Felice on the 28th — that Brigman and Fields had killed Harris. He told San Felice that they lured Harris from the playground on the pretext that they wanted to “test some drugs”, that the gun they used belonged to Fields’ father, and that he (appellant) “was present when a contract was placed on Mr. Harris for allegedly setting up a drug robbery.” Once again, he refused to put his statement in writing.

The third statement, to which no complaint is made here, was a written one given by appellant to Brigman in March, 1982. The two men were then in the county detention center. Brigman learned that appellant had implicated him in the murder and confronted appellant. At Brigman’s urging, appellant wrote a letter in which he exculpated Brigman and inculpated himself.

The fourth statement came about in connection with the polygraph examination requested by appellant. The parties, according to appellant, agreed in advance that no statement made “during the polygraph examination” would be used in evidence. A waiver of rights form was signed. While preparing for the test, which was conducted at the police station,