Couser v. State

Decision Date06 May 1976
Docket NumberNo. 794,794
Citation356 A.2d 612,31 Md.App. 401
PartiesJohn Henry COUSER v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

Richard M. Karceski, Assigned Public Defender, Columbia, with whom was Harold I. Glaser, Baltimore, on the brief, for appellant.

Bruce C. Spizler, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., William A. Swisher, State's Atty., for Baltimore City and Arthur Cheslock, Asst. State's Atty., for Baltimore City on the brief, for appellee.

Argued before THOMPSON, MENCHINE and LOWE, JJ.

THOMPSON, Judge.

John Henry Couser, the appellant, was convicted of possessing heroin by the Criminal Court of Baltimore, Judge John Hargrove presiding without a jury. He was sentenced to a four year term. The contentions on appeal will be set out separately after a brief statement of the facts.

It was stipulated that Detective David Harris and Sergeant Newman would testify that after receiving certain information from an informant they began surveying the entrance way to an alley near Pennsylvania Avenue in the City of Baltimore. They observed the appellant, Couser, enter the alley and disappear from the view of the officers for approximately three minutes, when he reappeared and met with an unknown person. The unknown person and the appellant then parted in opposite directions. A few minutes later the officers resumed their surveillance from the rear of the alley. Soon thereafter they saw the appellant re-enter the alley and walk to the rear of the buildings, again disappearing from their view for approximately one minute before reappearing between two buildings. This time the officers exited their police vehicle. When they were approximately six feet from the appellant, they ordered him to stop, identifying themselves as police officers. Appellant began to run and dropped a package containing two glassine bags of white powder, later identified as heroin. One of the officers picked up the two bags while the other ran after the appellant and apprehended him within a few minutes. The officers searched the general area of the alley for 45 minutes hoping to find a 'stash', which is a street term for hidden narcotics. The search proved fruitless.

Thereafter the appellant testified, denying that he dropped the heroin and giving a legally innocent explanation for his two trips into the alley. On rebuttal, the State called Detective David Harris to the stand who supported the statement given by the State's Attorney at the beginning of the trial.

I. The appellant was improperly advised of the jury's

function in determining his guilt or innocence

should he have elected a trial by jury.

At the beginning of the trial, appellant's counsel informed the court that the defendant elected a trial before the judge. Thereafter, in attempting to let the record establish that the election was the personal election of the accused, the following transpired:

'Mr. Kroop: Now, furthermore, I have told the Court that we agreed to waive a trial by jury. I have explained to you and think you are aware that a jury consists of twelve persons that would sit there in the jury box. Each of those twelve people would be selected at random from the community of Baltimore City. The jurors would be comprised of men, women, all different races, creeds, colors and religions. They would sit there in the jury box. Each of reasonable doubt that you were in fact either guilty or not guilty. If all twelve of them did not agree-You could never be found guilty unless all twelve agreed. Do you understand that?

'Mr. Couser: Yeah.

'Mr. Kroop: Now, I want to explain that instead of a jury trial Judge Hargrove will listen to the facts and he, and he alone, will make a decision as to whether or not you are guilty of any of these charges in the first or second count. Do you understand that?

'Mr. Couser: Yeah.'

Appellant points to the error in the information furnished by his counsel that the jurors would have to agree beyond a reasonable doubt that he was not guilty and alleges that this misinformation vitiated his election to have the case tried before the court. We do not agree.

State v. Zimmerman, 261 Md. 11, 273 A.2d 156 (1971) established that a post conviction proceeding is usually the proper way to determine the validity of a waiver of a jury trial. We think this case illustrates the sound reasoning of Zimmerman, supra. Whether or not the single misstatement in counsel's explanation of a jury trial was sufficient to mislead the appellant depends on what information counsel had imparted to the accused prior to trial and what information the accused had otherwise acquired. In view of the appellant's extensive involvement in many prior criminal proceedings, as shown by the record, it is not likely appellant was actually mislead, but if he were he is free to establish that fact in post conviction procedures.

II. The appellant's waiver of his right to a trial by jury,

if intelligently made, was coerced by the state's threat to

bring the appellant to trial on a separate, unrelated

charge, criminal information number 27400360.

The appellant alleges because the State agreed to, and did, nol. pros. an unrelated charge as part of an agreement to stipulate what the police officers' testimony in chief would be, he was coerced into agreeing to the stipulation. As the appellant concedes in oral argument such a ruling would be tantamount to holding that plea bargaining is illegal. We decline to so hold.

Plea bargaining has been approved inferentially by the Supreme Court of the United States, Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), by the Court of Appeals of Maryland, Miller v. State, 272 Md. 249, 322 A.2d 527 (1974), and by this Court, Sturgis v. State, 25 Md.App. 628, 336 A.2d 803 (1975). In the instant case there were two unrelated charges pending against appellant. In return for appellant agreeing to proceed on partially stipulated evidence, a nol. pros. was entered on the second charge. We see no coercion. It was a simple agreement which was kept by the prosecutor. If an accused can enter a guilty plea in return for prosecutor's agreement to dismiss a second charge, it is obvious there is nothing improper in his agreeing to accept stipulated testimony in return for the same promise. Sturgis, supra.

III. The appellant was not properly advised, nor did he

waive or acquiesce in the procedure of stipulating

to the State's case in chief.

Under this heading, the appellant contends that the waiver was improper because he was not advised in open court that he would have a right to a hearing to suppress the contraband seized and an oral statement given. He relies on Brookhart v. Janis, 284 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966), which he contends held that a stipulated statement of facts was tantamount to a plea of guilty and therefore the accused must be advised of all of the rights set out in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), wherein it was held that an accused entering a guilty plea must be advised and understand his right to a jury trial, his right to be confronted by the witnesses against him and that in such a trial the fact that he did not testify could not be used to infer guilt. We are aware of no court that has held that an accused must be further advised as to the manifold rights he waives by entering a guilty plea. We hold there is no necessity for the trial judge to advise an accused of his rights to a hearing to suppress evidence prior to acceptance of a guilty plea or prior to the accused's agreement to be tried on stipulated facts. In Palmer v. State, 19 Md.App. 678, 680, 313 A.2d 698 (1974), cert. denied, 271 Md. 742, we held that the proper time to present a Brookhart v. Janis, supra, question was on post conviction proceedings.

We note that the case was not tried on an agreed statement of facts but was tried simply on the stipulation that the police officers' testimony in chief would be received by stipulation. See Barnes v. State, Md.App., 354 A.2d 499, (September Term, 1975, filed March 31, 1976).

IV. The failure of the trial court to rule on the

appellant's motion for a judgment of acquittal at

the conclusion of the entire case makes

the entry of the trial court's

guilty finding a nullity.

The second count of the criminal information charges the appellant with simple possession of heroin. The trial judge did not specifically rule upon the appellant's motion for a judgment of acquittal, 1 but found a verdict of guilty on that count. In the recent case of State v. Sirbaugh,27 Md.App. 290, 294, 339 A.2d 697 (1975), this Court stated that the failure of a trial judge to rule on a motion for...

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    ...v. Villa, 111 Ariz. 371, 530 P.2d 363 (Sup.Ct.1975); State v. Shing, 109 Ariz. 361, 509 P.2d 698 (Sup.Ct.1973); Couser v. State, 31 Md.App. 401, 356 A.2d 612 (Ct.Spec.App.1976); People v. Warren, 79 Misc.2d 777, 360 N.Y.S.2d 961 (Sup.Ct.1974), aff'd Sub nom., People v. Apted, 51 A.D.2d 1024......
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