Covington v. State
| Decision Date | 06 February 2018 |
| Docket Number | No. 2048,2048 |
| Parties | TIMOTHY AARON COVINGTON v. STATE OF MARYLAND |
| Court | Court of Special Appeals of Maryland |
Circuit Court for Kent County
Case No. 14-K-16-008934
UNREPORTED
Woodward, C.J., Shaw Geter, Fader, JJ.
Opinion by Shaw Geter, J.
*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.
Appellant, Timothy Covington, was charged in the District Court of Maryland for Caroline County with second degree assault on a law enforcement officer, second degree assault, and resisting arrest. Ultimately, after appellant requested a jury trial and removal from Caroline County, the case was transferred to the Circuit Court for Kent County. There, the State nol prossed the first count, and a jury acquitted appellant of second degree assault, but convicted him of resisting arrest. After appellant was sentenced to three years in prison, he timely appealed, presenting the following questions for our review:
For the following reasons, we conclude the first issue is unpreserved, but answer the second question in the affirmative. Accordingly, we shall vacate appellant's conviction and remand for further proceedings consistent with this opinion.
The Honorable Broughton Earnest, a retired Circuit Court Judge from Talbot County, testified that, on November 23, 2015, he was sitting as designated in the Circuit Court for Caroline County, and presiding over a criminal jury trial involving appellant. During the jury selection process, appellant asked to leave the court room to make a telephone call. Informing him that he did not want to delay voir dire, Judge Earnest denied the request at that time, but told appellant he could make his phone call later during an upcoming recess. He also told appellant that if his subpoenaed defense witnesses did not appear for trial, then the court would likely declare a mistrial.
Despite telling appellant he could not leave the courtroom, moments later, the judge noticed that appellant was gone from the courtroom. Because no one knew where he was, the judge took a short recess. Approximately ten minutes later, a bailiff located appellant and brought him back to the courtroom.
Judge Earnest then asked appellant why he left. Although the judge did not recall appellant's exact words, appellant replied, something to the effect of, "that he felt it was necessary." Acknowledging that appellant may have stated that he went to get some "paperwork for the trial," or possibly that he wanted to contact some of his witnesses, Judge Earnest testified that "[h]e gave a reason which I felt was not satisfactory." The judge testified that, while the jury was out for a recess:
Well, I...at that point, the jury had been held up for at least 10 minutes while we looked for him and then a little longer while we had this conference out of their presence, and I didn't think it was fair to the jury to take a chance that he was going to leave again, so I told him that I was revoking his bond and that he was no longer on personal bond or whatever the bond was that had [sic]...I believe it was personal bond prior to that time, and that was my response to make sure he was going to be there when we needed him there.
Asked to describe the process involved, Judge Earnest explained as follows:
At that time, appellant was "mad" and cursed at the judge. Thereafter:
Well, you know, after he cursed me, he, you know, he started getting loud I believe with the deputy who was trying to reason with him. And, at that point, I think I took a recess because I didn't want to punish him and I didn't want to hold him in contempt. I figured he was...he had created enough problems for himself. And even though he had cursed me and I was...it was a contempt of court, I could have ordered him to pay a fine or go to jail for some period of time for contempt of court, I chose not to do that, and I didn't want to disrupt things more than he had already disrupted.1
Throughout the trial that day, appellant was "loud," "obstructive," "very unhappy," and "somewhat out of control." But, Judge Earnest did not yell or raise his voice, and instructed appellant to remain calm so as not to disrupt the proceedings. The altercation that was the impetus of the charges in this case happened near the end of trial, during jury deliberations,when the judge, who was out of the courtroom at the time, was informed that there had been a "problem" in the courtroom involving appellant.
An audiotape from the November 23, 2015 trial was played for the jury. That clip included portions of several conversations wherein: (1) Judge Earnest was overheard telling appellant not to leave the courtroom; (2) the conversation when appellant was returned to the courtroom after leaving without permission; and, (3) portions of the discussion between Judge Earnest and appellant while the jury was deliberating.2 During the portion of the recording that transpired before the altercation at issue, appellant could be heard cursing at the judge, "loud and clear." Judge Earnest agreed he could have held appellant in direct contempt, but instead, "I chose to ignore it." Judge Earnest then declared a recess to give appellant "an opportunity to calm down." After the altercation, the jury returned its verdict, acquitting appellant of the underlying charge at issue in that case.3
On cross-examination, Judge Earnest agreed that, following his order during voir dire, appellant was in the custody of the Sheriff. Pursuant to that order, appellant was taken back and forth to a holding cell throughout the course of the trial.
Judge Earnest also confirmed he was familiar with Maryland Rule 4-216.2(b).4 Although Judge Earnest also agreed that revoking pre-trial release often does not happen during trial, he testified that, in this instance:
I waited until he got back and then called him up and asked him why he had left the court room in violation of my order, and he was given an opportunity then and there to hear. So, as far as I'm concerned, the rule was complied with.
Dale Minner, the Clerk of Court for Caroline County, was present in Judge Earnest's courtroom throughout the entire trial day in question. During jury selection, Minner heard Judge Earnest, in response to a query by appellant, tell appellant that he could not leave the courtroom during voir dire. Approximately three to five minutes later, appellant did, in fact, leave the courtroom.
After Sheriff's Deputy Jacob Andrew was dispatched to locate appellant, appellant was returned to the courtroom, and Judge Earnest asked appellant "Where'd you go?" and "Why'd you leave," and reminded him that "I told you not to go make a phone call." According to Minner, appellant replied, It was at that point that Judge Earnest directed Deputy Andrew to take appellant into custody. When asked later by defense counsel whether Judge Earnest gave appellant "notice" that he was going to revoke his pre-trial release, Minner initially testified that it was a "verbal" as opposed to "written" notice. He ultimately confirmed that he did not hear any notice, testifying "I think nobody knew it until it was said out loud" by the judge.
As the trial went on, Minner testified that appellant became more "agitated." Minner then described the altercation that ultimately led to new charges being filed against appellant, as follows:
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