Davis v. State

• Citation: 343 A.2d 550,28 Md.App. 50
• Decision Date: 08 September 1975
• Docket Number: No. 916,916
• Parties: lloyd Franklin DAVIS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 50

28 Md.App. 50

343 A.2d 550

lloyd Franklin DAVIS v. STATE of Maryland.

No. 916.

Court of Special Appeals of Maryland.

Sept. 8, 1975.

Dennis M. Henderson, Asst. Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

Donald R. Stutman, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Clarence W. Sharp, Asst. Atty. Gen., Lawrence V. Kelly, State's Atty., and Michael R. Burkey, Asst. State's Atty., for Allegany County, on the brief, for appellee.

Argued before GILBERT, MOORE and MASON, JJ.

MOORE, Judge.

The issues before us on this appeal are whether appellant who pled guilty to three counts of burglary was properly apprised, when he entered his pleas, of his constitutional privilege against self-incrimination; and whether, with respect to two of the counts, there was a factual basis for the pleas.

Appellant, Lloyd Franklin Davis, was charged by a criminal information on March 6, 1974 with nine counts of burglary. At his arraignment on March 14, 1974, he entered a plea of not guilty and prayed a jury trial. On April 22, 1974, when the case was called for trial in the Circuit Court for Allegany County before The Honorable Harold E. Naughton, appellant's counsel informed the court that Mr. Davis desired to enter pleas of guilty to the first, sixth and ninth counts of the information. The State thereupon announced that if the pleas were accepted, it would stet the remaining counts. The trial judge then addressed the following questions to the appellant:

'BY THE COURT: Stand please, Mr. Davis. Mr. Davis, in order to make certain that you are entering your pleas of guilty to these three counts willingly, freely, knowingly and with some degree of intelligence, it is necessary that I ask you a few questions and determine that fact.

Now would you please state your full name?

MR. DAVIS: Lloyd Franklin Davis, Jr.

BY THE COURT: Are you able to hear my questions?

MR. DAVIS: Yes sir.

BY THE COURT: And are you now under the influence of any alcohol, drugs, narcotics or pills of any kind?

MR. DAVIS: No sir.

BY THE COURT: Are you represented by an attorney in this case, and if so is he present with you at this time?

MR. DAVIS: Yes sir.

BY THE COURT: And what is his name?

MR. DAVIS: Mr. Robb.

BY THE COURT: Now have you been furnished with a copy of the information filed in this case?

MR. DAVIS: Yes sir.

BY THE COURT: And have you read the information and discussed it with your attorney?

MR. DAVIS: Yes sir.

BY THE COURT: Do you fully understand the three charges to which you have entered pleas of guilty?

MR. DAVIS: Yes sir.

BY THE COURT: Now the charges that you've entered pleas of guilty to are burglary, three counts of burglary, each being a felony for which this Court could give you twenty years in prison on each charge, or a total of sixty years. Do you understand that, Mr. Davis?

MR. DAVIS: Yes sir.

BY THE COURT: Now has anyone promised you that I would go easy on you if you entered pleas of guilty?

MR. DAVIS: No sir.

BY THE COURT: Any promises or threats been made to induce you to plead guilty?

MR. DAVIS: No sir.

BY THE COURT: You understand that if you plead not guilty that at the trial the State would have to produce witnesses against you in open Court, and that you would have the right through your attorney to cross-examine all of them?

MR. DAVIS: Yes sir.'

The next question asked by the court pertained to appellant's privilege against self-incrimination:

'BY THE COURT: Do you also understand if you plead not guilty you would not have to take the witness stand in your own defense unless you desired to do so, and if you did not take the stand the prosecuting attorney may not comment or make reference to your failure to testify?

MR. DAVIS: Yes sir.

BY THE COURT: Do you understand that? Do you also understand that if you plead not guilty that you have the right to trial by a Jury or by the Court without a Jury, the choice would be yours? At the trial you would be presumed innocent until proved guilty beyond a reasonable doubt.

MR. DAVIS: Yes sir.

BY THE COURT: Now I have recited to you certain constitutional rights which you have as a defendant in a criminal case. Do you understand that by pleading guilty you are in fact waiving these rights?

MR. DAVIS: Yes sir.'

The State was then requested by the court to give its 'version of these three cases' and responded as follows:

'MR. KELLY: May it please the Court, the facts in these cases would be that on the 11th day of February, 1974, Lieutenant Kenneth Morrissey of the Cumberland Police Department received a tip that the home of Carl Pete Robb, located at 716 Winifred Road, Cumberland, Maryland, would be broken and entered that evening.

Lieutenant Morrissey in company with Corporal McGrown and other State and City of Cumberland policemen went to the residence. They staked the place out, being inside of the premises in the evening hours at approximately 8:30 or around 8:00 o'clock, during the dark hours of the day. The police officers did observe an individual, who they would recognize as the Defendant in this case, Mr. Lloyd Franklin Davis, pop the sliding glass door as an entrance to the place, came into the premises, was arrested on the premises in company with two other individuals.

After being taken into custody, Mr. Davis was questioned by William F. Baker of the State's Attorney's Office, after having been fully advised of his constitutional warning. Mr. Davis did give a statement indicating his guilt both in the Pete Robb home which I have described and in two other premises, one being the home of Charles Steiner located at 625 Niagara Street, which was burglarized on the 29th day of January, 1974, and also the home of Jack Carter located 1045 Bishop Walsh Drive in the City of Cumberland, which burglary occurred on the 6th of February. As I've indicated, Mr. Davis indicated both in an original statement given on Monday, February 11th, 1974, to Mr. Baker, and in a supplemental statement dated February 12th, Tuesday, February 12th, 1974. He indicated he was involved with the codefendants; that he had broken these homes that he has plead guilty to in addition to other homes in the area during this period of time.

I might indicate to the Court that with regard to the Carter home it was property of the total value of . . ..

BY THE COURT: He's not pleading guilty to that is he?

MR. KELLY: I believed he was.

BY THE COURT: Yes, he is. That's the sixth count.

MR. KELLY: Yes sir. With regard to the Carter property, Your Honor, the total value of the property removed from that home, which was broken during the dark hours of the day, was $890.00. Approximately $756.00 worth of that property has been recovered, leaving a total unaccounted for of $134.00. In addition, there was $75.00 damage to a door that was broken. With regard to the home of John W. Steiner, the total value of the property removed from those premises during the burglary that occurred on the 29th of January, '74, was $680.50. $100.00 of that property, that is a single diamond ring, has been recovered, leaving a total unaccounted for property loss of $580.50. And in addition there was $80.00 damage to the basement door. With regard to the Carl Pete Robb home, there was no property stolen inasmuch as the defendants were apprehended on the premises. However, there was $50.00 damage to a bedroom wall. There was no property, as I've indicated, taken from this premises.'

After hearing the above statement of the facts and ascertaining that appellant agreed with the statement, the court accepted appellant's pleas of guilty. On April 24, 1974, the court imposed three consecutive five-year sentences.

I

The principal constitutional question raised by appellant, based upon our decision in English v. State, 16 Md.App. 439, 298 A.2d 464 (1973), cert. granted, 268 Md. 748, dismissed July 3, 1973, is that prior to the acceptance of his guilty pleas he was not informed by Judge Naughton that if he elected to stand trial and did not take the witness stand no inference of guilt could be drawn from his failure to testify.

In English v. State, supra, we quoted from Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964) that the meaning of the privilege is 'the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty * * * for such silence.' We then stated as follows:

'Therefore, in order for an accused to waive the privilege against self-incrimination as it applies to his trial on a criminal charge he must understand that he has the right not to testify and that no unfavorable inference may arise from his not testifying. Unless the record affirmatively shows that he understood this privilege and waived it in the constitutional sense, acceptance of his plea of guilty is not effective.'

First we observe that our decisions in English and in Williams v. State, 10 Md.App. 570, 271 A.2d 777 (1970), and Silverberg v. Warden, 7 Md.App. 657, 256 A.2d 821 (1969) placed Maryland in the minority of jurisdictions which adhere to the view that the decision of the Supreme Court of the United States in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) requires some articulation to the defendant that a guilty plea constitutes a waiver of the Fifth Amendment right against self-incrimination and the Sixth Amendment rights to a jury trial and to confront one's accusers. Indeed, the United States Courts of Appeals which have addressed this issue are unanimous that under Boykin specific questions about the waiver of these rights are not required. ¹

Supporting the Maryland position, however, is the leading California case of In Re Tahl, 1 Cal.3d 122, 132-33, 81 Cal.Rptr. 577, 584, 460 P.2d 449, 456 (1969), cert. denied, 398 U.S. 911, 90 S.Ct. 1708, 26 L.Ed.2d 72 (1970) where the Supreme Court of California in an opinion by Justice Mosk interpreted Boykin to...