Epps v. State

• Decision Date: 02 September 1982
• Docket Number: No. 1008,1008
• Citation: 52 Md.App. 308,450 A.2d 913
• Parties: Ronald T. EPPS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 308

52 Md.App. 308

450 A.2d 913

Ronald T. EPPS v. STATE of Maryland.

No. 1008.

Court of Special Appeals of Maryland.

Sept. 2, 1982.

J. Michael McLaughlin, Jr., Assigned Public Defender, for appellant.

Diane G. Goldsmith, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., William A. Swisher, State's Atty. for Baltimore City, and John Themelis, Asst. State's Atty. for Baltimore City, on the brief, for appellee.

Argued before MORTON, MOORE and LISS, JJ.

MOORE, Judge.

In this case appellant complains that he agreed to a bench trial on the condition that he would, if found guilty, receive only "one life sentence." He was convicted of three counts of first-degree murder and two counts of arson, for which he was sentenced to three concurrent terms of life imprisonment and two 30-year terms, also concurrent. These sentences, he contends, breached a bargain he had made with the State and invalidated his waiver of a jury trial. Also, he claims, the trial judge abused his discretion by denying the appellant's motion to sever the two arson counts, thus entitling appellant to new trials. We disagree, for the reasons stated, and shall affirm the convictions.

I

Appellant, Ronald T. Epps, and Janice Witherspoon were friends and the parents of a baby girl before their "relationship" began to deteriorate in late 1979. Miss Witherspoon lived at 1526 Homestead Street in Baltimore, Maryland, the neighborhood of the various relatives and residents who testified at trial.

Roger Watson, who was married to Ms. Witherspoon's cousin, Verna, testified that he observed appellant coming from the rear of 1526 Homestead Street about 9 p.m. on March 5, 1980. That same evening, Ms. Witherspoon had gone to the Watsons' home to babysit and spend the night. Fire broke out in the Homestead Street residence at about 5:30 a.m. on March 6. Wardell Boroughs, who roomed on the second floor, and 13-year-old Paulette Preddy perished. ¹ 1] A neighbor, Renee Luttrell, testified that she talked to appellant at about 7 a.m. on March 6 a block away from the fire and he told her he had not heard about it.

Deborah Lawson, Ms. Witherspoon's guardian and aunt who lived at 2215-17 North Aisquith Street, testified that she received numerous telephone calls from appellant during March and April, sometimes two or three a day. "[H]e would say things like, you mother-fuckers are going to die.... It got so bad I had the phone off the hook for a period of time."

Ms. Witherspoon, who moved in with her aunt at 2215-17 North Aisquith in early April, testified that appellant told her on March 14 he would set her aunt's house on fire by climbing in through a basement window and starting a fire in the hallway near the stairs. Ms. Witherspoon related this conversation to her cousin Verna, and her aunt, Mrs. Lawson, who called the police. On April 16, 1980 at about 4 a.m., fire broke out at the Aisquith Street address. Sherron Pratt, Lewis Barnes, and Mrs. Lawson, all in the corner-lot building, testified that they heard an explosion and then saw smoke and flames. They escaped. Yvonne von Hendricks, however, was trapped on the third floor. She dropped her baby out the window, and Mr. Barnes caught the child in a blanket. She then jumped but Mr. Barnes "couldn't hold her;" she died from her injuries. ² Later that day, police arrested appellant who denied any involvement.

Charles Cornell, a fire investigator, determined that the Homestead Street fire started on the first floor stairway in a large pile of clothing. At first he concluded that the cause was "careless smoking." Later, he determined that the fire had been intentionally set, probably by a match thrown on the pile of clothing. The fire at Aisquith Street was also deliberately set, also at the base of the stairway, with gasoline.

Clifton Brown, a fellow inmate of appellant at the Baltimore City Jail, testified that he had a conversation with appellant on April 29 when:

"[h]e started telling me about the fire he set in the 1500 block of Homestead Street ... after the fire was set he ran ... and stood on the corner and he seen somebody go in and bring somebody out on the sidewalk, ... he told me he knew the little girl had got hurt in the house, she and her sister, ... the house was the second or third house from the corner ... and then he started telling me about the Aisquith Street fire ... after he set the fire he stood out there and watched the lady, as she dropped the child out of the window and then he seen [sic] her jump from out of the window."

Appellant testified that he had known Ms. Witherspoon for two and a half years, that there were "no problems" with their relationship, that he was sleeping when both fires occurred, that on April 16, he was picked up at his home at about 5 a.m. to go to work, ³ that he never saw Clifton Brown or had any contact with him in jail, and that he did not set either fire.

After closing arguments, the court found appellant guilty of all five charges. Following a pre-sentence investigation, appellant was sentenced on December 29, 1980. This appeal followed.

II

A criminal defendant's right to a jury trial is as fundamental as the maxim--innocent until proven guilty. It is guaranteed by the Constitution of the United States, U.S.Const.Amend. VI, applicable to the States through the Fourteenth Amendment, and by the Maryland Declaration of Rights, Arts. 5, 21 and 24. However, this right may be waived, as when the defendant pleads guilty, State v. Priet, 289 Md. 267, 424 A.2d 349 (1981), or elects to be tried by a judge. Md.Rule 735 (1981 Cum.Supp.); Rose v. State, 177 Md. 577, 10 A.2d 617 (1940). "To satisfy constitutional due process standards, the waiver of the right to a jury trial must constitute an intentional relinquishment or abandonment of a known right or privilege." Dortch v. State, 290 Md. 229, 234, 428 A.2d 1220 (1981), citing Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

Appellant here does not contend that he was uninformed of the nature of a jury trial or his right to it. Instead he claims that he waived a jury trial because the State promised he would get only "one life sentence," and the trial judge agreed to be bound by that promise. ⁴ Appellant argues that the cases construing Md.Rule 733 (Plea Agreements), Maryland Rules of Procedure, (1982 ed.), are so analogous to the bargain made by appellant that they should control. Once past this leap of logic, appellant concludes that the trial judge's failure to live up to the bargain requires a new trial. We cannot countenance the initial leap.

By its terms, Md.Rule 733 covers only guilty or nolo contendere pleas. Rule 733 c (Agreements on Sentence, Disposition or Other Judicial Action) comes into operation only "[i]f a plea agreement has been reached pursuant to subsection a 6 of this Rule for a plea of guilty or nolo contendere...." Subsection c is not at all applicable to a plea of not guilty--the plea in the instant case. Therefore, the reasoning of cases construing plea bargains, whose very existence is premised on pleas of guilty or nolo contendere, can have no application where the plea is not guilty. Gray v. State, 38 Md.App. 343, 356-7, 380 A.2d 1071 (1977). See generally Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); McCormick v. State, 38 Md.App. 442, 381 A.2d 694 (1978).

Further, the purpose of plea agreements is to expedite the processing of criminal defendants through the judicial system. The defendant agrees to give up something--the constitutional right to a jury trial, for example--to get something--a reduced charge, sentencing recommendation or other consideration outlined in Rule 733 a (Conditions for Agreement). McCormick, supra; Miller v. State, 272 Md. 249, 322 A.2d 527 (1974). This purpose and result are not analogous to the purpose of Rule 735 governing waiver of jury trial because there is no legal difference between jury trial and bench trial. Both modes of trial are considered equal, Gilbert v. State, 36 Md.App. 196, 210, 373 A.2d 311 (1977). ⁵

More importantly, bargaining over the waiver of a jury trial is not now addressed by any procedural rule in this State. The fundamental right to a jury trial may be waived under Md.Rule 735; if it is to be subject to barter between a defendant and the State, the trial judge should be apprised fully of the nature and extent of the bargain. (Whether it may properly be the subject of barter, a question we do not resolve, should be carefully considered by bench and bar.)

In this case, we observe that, after fully apprising the defendant on the record of the nature of jury and court trials, defense counsel went on to say:

"The State has indicated that in fact if you take a court trial and if you are found guilty the State is not going to suspend your murder [sentences], but ask the Judge, if you are found guilty, that the maximum sentence you get would be one life sentence. Do you understand that? [Answer: Yes]." (Emphasis added.) ⁶

Defense counsel then addressed the trial judge and the following colloquy occurred:

"MR. POLANSKY: If I understand the Court correctly, the Court is binding itself to that recommendation that if in fact Mr. Epps is found guilty of any charges in this case the maximum sentence would be one life sentence.

THE COURT: While the cases have been joined and we are proceeding as one case, they are all going to be heard together and if I find him guilty of either one he will get one life sentence?

MR. THEMELIS (State's Attorney): Yes, I am arguing for a life sentence.

MR. POLANSKY: And the Court will not exceed that sentence as being the maximum.

THE COURT: You are requesting me to bind myself to that if I so find him guilty.

MR. POLANSKY: Yes, sir.

THE COURT: Maybe I forgot the recommendation in my chambers, you want to approach the bench."

The bench conference was not recorded, but from the tenor of the questioning quoted above, it...