Covington v. State

• Decision Date: 22 May 1978
• Docket Number: No. 31,31
• Citation: 386 A.2d 336,282 Md. 540
• Parties: Quenzill COVINGTON v. STATE of Maryland
• Court: Maryland Court of Appeals

Page 540

282 Md. 540

386 A.2d 336

Quenzill COVINGTON v. STATE of Maryland

No. 31.

Court of Appeals of Maryland.

May 22, 1978.

Arnold M. Zerwitz, Assigned Public Defender, Baltimore, for appellant.

Alexander L. Cummings, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, LEVINE, ELDRIDGE and ORTH, JJ.

Reargued before MURPHY, C. J., and SMITH, DIGGES, LEVINE, ELDRIDGE, ORTH and COLE, JJ.

SMITH, Judge.

In Covington v. State, 34 Md.App. 454, 367 A.2d 974 (1977), the Court of Special Appeals held that appellant, Quenzill Covington (Covington), failed to preserve for appellate review his contention that the trial court denied him an opportunity to make an argument on the issue of whether there was sufficient evidence to warrant his conviction. We agree with the Court of Special Appeals.

The case was argued before all 12 judges of the Court of Special Appeals. Ten judges joined in the court's opinion. Two other judges filed a concurring opinion asserting that the right was waived. Since the facts are fully set forth in the opinion of that court, we shall relate only such facts as are necessary to a clear understanding of the issue presented.

Covington was charged in the Criminal Court of Baltimore with a number of violations of the narcotics laws. He was convicted on a single count of distribution of heroin upon the basis of an agreed statement of facts which was submitted to the trial court.

Chief Judge Gilbert opened his opinion for the Court of Special Appeals by stating:

"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 (.)' " Id. at 455, 367 A.2d at 975.

It would follow, however, that it would be incumbent upon a trial judge to determine whether the agreed facts were legally sufficient to convict of the crime charged.

The agreed statement of facts was a product of plea negotiations. The trial judge painstakingly questioned Covington, eliciting from him acknowledgment that he was willing to give up his right to testify; that he understood that he could elect to be tried by a jury; that if he had a trial he would have the right to see and hear all of the witnesses and his attorney would have a right to cross-examine these witnesses as well as the right to stop the State from producing any evidence which would be otherwise inadmissible; that he was giving up his right to testify on his own behalf; and that he was agreeing to the truth of the facts stated. The trial judge specifically commented:

"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."

After the statement of facts had been presented, the following transpired:

"MR. GROSSFELD (prosecutor): That would be the statement of facts, Your Honor.

"THE COURT: Mr. Carey, any additions or corrections to the statement of facts?

"MR. CAREY (defense counsel): I have advised Mr. Covington that at this time you would hear him as to any additions or corrections and he indicated to me that he has none. Is that correct, Mr. Covington?

"THE DEFENDANT: Yes.

"THE COURT: All right. Based upon the facts given to me by the State, I find that they are sufficient to find the defendant guilty beyond a reasonable doubt of the first count in indictment number 3214. And, accordingly, I do find him guilty of the charge."

The trial judge then invited counsel and Covington to make any comments they desired before imposition of sentence. No objection was made.

We granted Covington's petition for certiorari that we might consider his allegation that the trial judge erred in finding him guilty "without first affording him the right to present closing argument."

Maryland Rule 725 f makes Rule 522 applicable to criminal cases. Under Rule 522 a formal exception to a ruling or order of the court is unnecessary, but it is incumbent upon a litigant to make known to the court an objection to the action of the court at the earliest practicable opportunity. See, e. g., Greater Balto. Con. Mkt. A. v. Duvall, 255 Md. 90, 94, 256 A.2d 882 (1969); Fowler v. Benton, 229 Md. 571, 575, 185 A.2d 344 (1962); State Roads Commission v. Berry, 208 Md. 461, 466-67, 118 A.2d 649 (1955); Banks v. State, 203 Md. 488, 495, 102 A.2d 267 (1954); Kennedy v. Crouch, 191 Md. 580, 586 62 A.2d 582 (1948); Apple v. State, 190 Md. 661, 667, 59 A.2d 509 (1948); Davis v. State, 189 Md. 269, 273, 55 A.2d 702 (1947); and Courtney v. State, 187 Md. 1, 4-5, 48 A.2d 430 (1946). Under Rule 885 we do "not ordinarily decide any point or question which does not plainly appear by the record to have been tried and decided by the (trial) court . . . ."

In Yopps v. State, 228 Md. 204, 178 A.2d 879 (1962), a defendant who was offended by the failure of a trial judge to permit argument on his behalf immediately protested to the judge. It will be seen that no such protest was made here.

Covington's proper remedy is under the Maryland version of the Uniform Post Conviction Procedure Act, Maryland Code (1957, 1976 Repl.Vol., 1977 Cum.Supp.) Art. 27, §§ 645A-645J, originally passed in 1958 with the intent that there be brought together "into one simple statute all the remedies, beyond those that are incident to the usual procedures of trial and review, which are at present available for challenging the validity of a sentence . . . ." State v. D'Onofrio, 221 Md. 20, 29, 155 A.2d 643, 647 (1959); Brady v. State, 222 Md. 442, 447, 160 A.2d 912 (1960). We observed in State v. Zimmerman, 261 Md. 11, 273 A.2d 156 (1971):

"The public and the accused are entitled to speedy administration of justice. Memories fade with the passage of time. Therefore, the quest for truth and justice will best be served by the earliest possible determination of factual questions. For that reason it becomes important that orderly processes for those determinations be established and, once established, that there be adherence to those processes." Id. at 24, 273 A.2d at 163.

In Zimmerman an accused complained when the record did not affirmatively show that he knowingly made an election of a court trial rather than a jury trial, notwithstanding the fact that an election of a court trial had been made by his attorney in his presence. The Court of Special Appeals proposed sending the case back to the trial court for a determination as to whether there was a knowing waiver of the right of trial by jury. The record was to be returned to the appellate court after this determination. We pointed to Rule 1085 applicable to the Court of Special Appeals, the counterpart of Rule 885, and said that "(i)f Zimmerman honestly believe(d) that he did not knowingly elect a court trial rather than a jury trial, the avenue (was) open for him through post conviction procedure to air not only that contention but all other contentions relative to any impropriety in the course of that trial." We said that that "would be in accordance with the established procedures in Maryland and, at the same time, would provide full protection to the rights of Zimmerman."

Covington is not represented on appeal by his trial counsel. We are unable to read the mind of his trial counsel so as to determine why he did not raise the issue below. There is nothing in this record to indicate that he was in any way prevented from raising the issue at trial in the same manner in which the question was raised in Yopps. At a hearing under the Post Conviction Procedure Act, evidentiary issues may be fully explored. Such exploration would develop whether trial counsel fully understood what was being done and was satisfied with it. It would be determined, for instance, whether he had advised the trial judge that although he wished to be heard on the sentence to be imposed he did not wish to argue the issue of guilt or innocence. It likewise would be determined whether as a part of the plea bargain the defense conceded the sufficiency of the evidence and desired only to be heard on the sentence. After such full development of the facts surrounding this incident, an appellate court will not be placed in the position of speculating as to whether the complaint might be appellate afterthought. The court will have before it a full record upon which to determine whether the right of closing argument on the facts was denied to Covington, whether he knowingly waived such argument, or whether such argument was waived as a matter of trial tactics. Our insistence that an appellate court reach its conclusions with full information before it in no way deprives Covington of any rights. We believe it to be by far the sounder approach to the administration of justice. Nothing in Squire v. State, 280 Md. 132, 368 A.2d 1019 (1977), compels a contrary decision.

JUDGMENT AFFIRMED; APPELLANT TO PAY THE COSTS.

ELDRIDGE, Judge, dissenting:

In my view, the record in this case clearly shows that there was a denial of Covington's constitutional right to have closing argument made before the rendition of a verdict. The record also shows that there was no waiver of that right. In fact, there was no opportunity for counsel to have waived Covington's right to have closing argument....