Covington v. State

• Decision Date: 13 January 1977
• Docket Number: No. 352,352
• Citation: 34 Md.App. 454,367 A.2d 974
• Parties: Quenzill COVINGTON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 454

34 Md.App. 454

367 A.2d 974

Quenzill COVINGTON v. STATE of Maryland.

No. 352.

Court of Special Appeals of Maryland.

Jan. 13, 1977.

Bradford C. Peabody, Assigned Public Defender, Baltimore, with whom were Alan H. Murrell, Public Defender and Geraldine Kenney Sweeney Arnold M. Zerwitz, Asst. Public Defenders, Baltimore, on the brief for appellant.

Bernard A. Raum, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., William A. Swisher, State's Atty. for Baltimore City and Howard Grossfeld, Asst. State's Atty. for Baltimore City, on the brief for appellee.

Argued before THOMPSON, POWERS and LOWE, JJ.

Reargued before GILBERT, C. J., and MORTON and THOMPSON, MOYLAN, and POWERS, MENCHINE, DAVIDSON, MOORE, LOWE, MELVIN, MASON and LISS, JJ.

GILBERT, Chief Judge.

The plea of not guilty, accompanied by an 'Agreed Statement of Facts', is a peculiar animal. As was succinctly stated in Barnes v. State, 31 Md.App. 25, 35, 354 A.2d 499, 505 (1976),

'Under an agreed statement of facts both State and the defense agree as to the ultimate facts. Then the facts are not in dispute, and there can be, by definition, no factual conflict. The trier of fact is not called upon to determine the facts as the agreement is to the truth of the ultimate facts themselves. There is no fact-finding function left to perform. To render judgment, the court simply applies the law to the facts agreed upon. If there is agreement as to the facts, there is no dispute(.)'

The trial below proceeded on such an agreed statement of facts. The defendant, Quenzill Covington, appellant here, was found guilty by the trial judge and sentenced to eight years, to run concurrently with another sentence (of four years) that he was then serving.

He makes the following contention on appeal:

'The court below erred in finding Appellant guilty without first affording Appellant the right to argue the merits of his case.'

In support of this contention, Covington, asserts that the lack of argument by his counsel, after the evidence was admitted prior to the Court's finding of guilty, denied him his right to counsel in violation of the precepts of Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975); Yopps v. State, 228 Md. 204, 178 A.2d 879 (1962); and Moore v. State, 7 Md.App. 330, 254 A.2d 717 (1969).

Before evaluating his claim in terms of the above-mentioned cases and others, we set forth, with minor editing, the proceedings below up to and including the conviction of the accused. ¹

'MR. CAREY: We have received a copy of the indictment, Mr. Clerk and we are familiar with it and we waive the reading thereof and the plea is not guilty. Mr. Covington, you advised me that you wish to plead not guilty. You also advised me that you wished to proceed under what is called a statement of facts. That's wherein the State's Attorney will read a statement of facts rather than present live testimony here this morning. Do you understand that?

THE DEFENDANT: Yes.

MR. CAREY: Do you also understand that you could plead not guilty and ask for a jury trial?

THE COURT: I will do that with him. Which count are you calling, Mr. Grossfeld?

MR. GROSSFELD: First count. And, not as to the addendum. As to the first count of the indictment only.

THE COURT: Mr. Covington, let me just advise you of a few things. By proceeding on an agreed statement of facts as your attorney has indicated that you are going to do, that means that the State will present to me an agreed statement of facts. You will not be permitted to testify. Normally you would have a right to testify in the case. But, by agreeing to proceed on an agreed statement of facts you are giving up your right to testify on your own behalf in the case. Do you understand that?

THE DEFENDANT: Yes.

THE COURT: And, you are willing to give up your right to testify?

THE DEFENDANT: Yes.

THE COURT: All right. Why don't you have a seat. Mr. Grossfeld, what are the plea negotiations?

MR. GROSSFELD: Your Honor, the plea negotiations are as follows: Should the defendant be found guilty, the State would then recommend 8 years concurrent to the 4 years he is now serving dating from August, Your Honor. So, it's actually 8 years dating from August of 1975.

THE COURT: Do you have a date?

MR. GROSSFELD: That would be August 15, Your Honor.

THE COURT: All right. Mr. Carey, is that the actual extent of the plea negotiations?

MR. CAREY: Yes, Your Honor.

MR. GROSSFELD: And, the State will also nolle prosequi the other charges, Your Honor.

THE COURT: That's 3213?

MR. GROSSFELD: Yes, Your Honor.

THE COURT: Mr. Covington, the State's Attorney has stated in open court that in exchange for your agreeing to proceed on an agreed statement of facts in this case, the State will recommend to me that if you are found guilty, that I give you an 8 year's sentence concurrent with the 4 year sentence that you are now serving and that I give the 8 year sentence as of August 15, 1975 so as to give you credit for the time you are incarcerated for this particular offense. And, the State will nolle prosequi the other charges against you. Now, has anyone made any other promise, threat or inducement to you other than what I have just told you to get you to agree to proceed on an agreed statement of facts in this case?

THE DEFENDANT: No, sir.

THE COURT: Now, do you understand that you could elect to be tried by a jury in this case?

THE DEFENDANT: Yes.

THE COURT: What that means is that 12 registered voters from the City of Baltimore would comprise the jury. No one can be excluded from the panel because of race, color, religion, sex, national origin or economic status and that in order for you to be convicted of this offense, all 12 members of that jury would have to be convinced of your guilt. In other words, if one member of that jury was not convinced of your guilt beyond a reasonable doubt then you could not be convicted of this charge. Now, do you understand by proceeding on an agreed statement of facts that you're giving up your right to be tried by a jury, do you understand that?

THE DEFENDANT: Yes.

THE COURT: Now, if you had not proceeded in this way, if we had a trial, you would have the right to see and hear all of the witnesses against you. Your attorney would have a right to cross-examine these witnesses. You would have the right to stop the State from producing any evidence that would be otherwise inadmissible. By proceeding on an agreed statement of facts, do you understand that you are giving up this right that I have just mentioned to you?

THE DEFENDANT: Yes.

THE COURT: Now, do you also understand that by proceeding in this fashion the State can prove its case against you by reading into the record what in intends to prove without having to put witnesses on the witness stand and the State will be able to have other evidence admitted without objection on your part. Do you understand that?

THE DEFENDANT: Yes.

THE COURT: And, do you also understand that I will consider the facts given to me by the State as true and can use those facts as a basis for finding you guilty of this offense. Do you understand that?

THE DEFENDANT: Yes.

THE COURT: Now, if there were a trial, you would have a right to testify in your own behalf or you could choose not to testify in your own behalf and no inference of guilt would be raised because of your failure to testify. Do you understand that?

THE DEFENDANT: Yes.

THE COURT: Do you understand that you are giving up the right to testify in this case?

THE DEFENDANT: Yes.

THE COURT: All right. You can be seated.

MR. CAREY: Your Honor, I'm sure that there will be no problem. But, my understanding on an agreed statement of facts is that he would have a right to testify. I'm sure he's going to advise the Court that he does not intend to.

THE COURT: Well, the way we proceed in this court, and, it varies from Judge to Judge, that if you agree to proceed on an agreed statement of facts you have to agree to those facts.

MR. CAREY: It is an agreed statement of facts.

THE COURT: That's right. And, I will only proceed in this case if the defendant forgoes his right to testify. In other words, he has to agree to the facts and not testify to the contrary. Anything he wants to say in mitigation he can say after and if a guilty finding is made.

THE COURT: Mr. Grossfeld, do you want to give me the facts?

MR. GROSSFELD: Your Honor, the agreed statement of facts agreed to by counsel for the State and the defense are as follows: The State would have called Detective Williams who's present in court today, Your Honor, who is aware and does know of the plea negotiations.

The detective would testify that on May 15, 1975 he received a phone call from an informant concerning some narcotics that could be purchased at Greenmount and North Avenue section of Baltimore City. At approximately 4 p. m. that day the detective met his informant at North Avenue and Greenmount Avenue in Baltimore City at which time the informant then took him over to meet the defendant seated at the trial table who the detective would identify. At that time the informant introduced the detective to the defendant. Upon having a conversation, the detective was able to reach an agreement with the defendant where he would buy 25 bags of heroin or a bundle for the price of $125 at approximately 4:30 p. m., the detective, along with the defendant went to 107 Albemarle Street-Apartment 7F. The detective took him into-107 Albemarle Street. At approximately 5 o'clock when they arrived to this particular location and in that apartment, the defendant then handed over to the officer 25 glassine bags containing a white powdery substance which the detective believed to be heroin. The detective then left that particular location.

THE COURT: Didn't he pay for it?

MR. GROSSFELD: He paid $125, Your Honor. The detective then forwarded the 25 glassine bags to Washington where it was analyzed by Earl Parrish, Washington, D.C. and, the results was 7.5 percent...