Hardaway v. State

• Decision Date: 13 October 1987
• Docket Number: No. 157,157
• Citation: 72 Md.App. 592,531 A.2d 1305
• Parties: Anthony E. HARDAWAY v. STATE of Maryland. Sept. Term 1987.
• Court: Court of Special Appeals of Maryland

Page 592

72 Md.App. 592

531 A.2d 1305

Anthony E. HARDAWAY v. STATE of Maryland.

No. 157 Sept. Term 1987.

Court of Special Appeals of Maryland.

Oct. 13, 1987.

Michael R. Braudes, Asst. Public Defender (Alan H. Murrell, Public Defender, on the brief), Baltimore, for appellant.

Cathleen C. Brockmeyer, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Kurt L. Schmoke, State's Atty. for Baltimore City and Jack Lesser, Asst. State's Atty. for Baltimore City, on the brief), Baltimore, for appellee.

Submitted before WILNER, KARWACKI and ROBERT M. BELL, JJ.

ROBERT M. BELL, Judge.

Anthony E. Hardaway, appellant, was convicted by a jury in the Circuit Court for Baltimore City of attempted murder in the first degree. His motion for a new trial was denied and he was sentenced to life imprisonment. On this appeal of that judgment, he presents four issues:

1. Did the trial court err in instructing the jury, over appellant's objection, that appellant had a constitutional right not to testify and that no adverse inference was to be drawn from his election to remain silent?

2. Did the trial court err in admitting the testimony of Wanda Smith in the State's case in rebuttal?

3. Did the trial court err in commenting to the jury on the facts of the case?

4. Did the trial court err in failing to instruct the jury on all the necessary elements of attempted murder?

We will address the issues in the order presented, providing during the discussion of each such facts as are necessary to its resolution.

1.

Over appellant's objection, the court instructed the jury:

Now, as you have seen, the defendant himself did not take the witness stand to testify in his own defense. Every individual has that absolute constitutional right not to testify. You must not presume or infer any guilt, because the defendant chose not to take the stand to testify.

Because appellant's objection was to the fact of the giving of the instruction, not to its substance, the court explained that it gave the instruction over that objection "because on occasion I have found the jurors comment that they thought the defendant was somehow barred from testifying because he didn't testify.... I believe the jury ought to be told that it was the defendant's decision not to testify, rather than the State having or the court having prevented him from testifying." Appellant strenuously contends that, in so instructing the jury, the court committed reversible error.

Lakeside v. Oregon, 435 U.S. 333, 98 S.Ct. 1091, 55 L.Ed.2d 319 (1978), holding that the giving of a cautionary "right not to testify" instruction does not violate the privilege against compulsory self-incrimination guaranteed by the Fifth and Fourteenth Amendments of the federal Constitution, id., 435 U.S. at 340-41, 98 S.Ct. at 1095, and Lambert v. State, 197 Md. 22, 78 A.2d 378 (1951) and Pearson v. State, 28 Md.App. 196, 343 A.2d 916, cert. granted, 276 Md. 748 (1975), petition dismissed as improvidently granted, September Term, 1975, No. 113 (filed March 4, 1976), both decided prior to Lakeside, are pertinent to our resolution of this issue.

In Lambert, the Court of Appeals held that "it is not prejudicial error for the trial judge to comment that the accused failed to take the stand, if he immediately afterwards instructs the jury that his failure to take the stand cannot be made the basis for any inference of guilt." 197 Md. at 29-30, 78 A.2d 378. It is not clear from the record of that case, however, whether the defendant objected to, or in any way opposed, the giving of such an instruction.

The facts before this Court in Pearson were quite similar to those sub judice, although the issue presented was different: whether the giving of a cautionary "right not to testify/no adverse inference" instruction violated provisions of the federal Constitution. Foreshadowing the Supreme Court's decision in Lakeside, we held that it did not. The Court observed:

The accused is, of course, entitled to such instruction if it is requested by him. We are not persuaded, however, that the giving of such an instruction by the trial judge sua sponte, or at the request of the prosecutor, even over the objection of the accused, constitutes reversible error in the absence of a showing that the accused suffered actual prejudice as a result of such instruction. Whether to give the instruction lies in the sound discretion of the trial judge and, unless an accused can show a clear abuse of discretion, the action of the trial judge in giving such instruction will not be disturbed if it is phrased in terms proper and fair to the accused.

28 Md.App. at 202, 343 A.2d 916. Then, concluding that the defendant had not shown actual prejudice and that the instruction was properly phrased, the court opined that the trial judge did not abuse his discretion in giving the instruction over the defendant's objection. Id. The Court acknowledged, however, "that it is the better practice for a trial judge to honor the request of an accused to refrain from advising the jury that no inference of guilt should be drawn from his failure to take the stand." 28 Md.App. at 201, 343 A.2d 916.

The Supreme Court, in Lakeside, rejected the argument, based on Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) ¹, that a "protective instruction becomes constitutionally impermissible when given over the defendant's objection." 435 U.S. at 338, 98 S.Ct. at 1094. The Court stated that Griffin concerned only "adverse" comments and, further, that "a judge's instruction that the jury must draw no adverse inferences of any kind from the defendant's exercise of his privilege not to testify is 'comment' of an entirely different order". (emphasis in original) 435 U.S. at 338-39, 98 S.Ct. at 1094. The Court also rejected the defendant's argument that, since he presented a defense through several witnesses, the giving of the cautionary instruction was like "waving a red flag in front of the jury." 435 U.S. at 340, 98 S.Ct. at 1095. In the Court's view, "[t]he very purpose of a jury charge is to flag the jurors' attention to concepts that must not be misunderstood, such as reasonable doubt and burden of proof. To instruct them in the meaning of the privilege against self-incrimination is no different." Id. The Court, finally, left open to each state the option whether "to forbid its trial judges from [giving the instruction over defense objection] as a matter of state law" and observed that "[i]t may be wise for a trial judge not to give such a cautionary instruction over a defendant's objection." Id.

Also relevant to our inquiry is the fact that the states that have considered this issue have reached differing results. For cases holding that the giving of the instruction over the defendant's objection is reversible error, see e.g., Commonwealth v. Buiel, 391 Mass. 744, 463 N.E.2d 1172 (1984); Russell v. State, 240 Ark. 97, 398 S.W.2d 213 (1966); Villines v. State, 492 P.2d 343 (Okla.1971); State v. Kimble, 176 N.W.2d 864 (Ia.1970); People v. Lee, 44 Ill.App.3d 43, 2 Ill.Dec. 668, 357 N.E.2d 888 (1976). ² For cases reaching the opposite result, see e.g., State v. Wheeler, 43 Wash.App. 191, 716 P.2d 902 (1986); Lujan v. State, 626 S.W.2d 854 (Tex.App.1982); Hines v. Commonwealth, 217 Va. 905, 234 S.E.2d 262 (1977); State v. Perry, 223 Kan. 230, 573 P.2d 989 (1977). ³ Although the facts are considerably different than those in this case, ⁴ the rationale of Wheeler is of particular interest to us. In refusing to hold that the giving of a cautionary instruction regarding a defendant's right not to testify, absent request or consent, is reversible error as a matter of state constitutional law, the Court said,

We are ... unpersuaded by Wheeler's reliance on the Washington Constitution. Article 1, § 9 (privilege against self-incrimination) is similar to the Fifth Amendment provision and should be given the same interpretation.... Lakeside should therefore control. Article 4, § 16, mandates that judges not comment on the evidence but declare the law. In this case, the disputed instruction briefly and accurately stated the law. (citation omitted)

716 P.2d at 909.

Fully aware of the foregoing, appellant nevertheless, on points reminiscent of one of the arguments made by the defense in Lakeside and the position eloquently espoused by the late Judge Lowe in dissent in Pearson ⁵, argues that the propounding of the instruction was, as a matter of state constitutional and non-constitutional law, reversible error. Specifically, he proffers:

... [A] judge should not instruct a jury at all on this subject where the defense requests that he not do so. Under some circumstances, any comment at all may effectively be "adverse" to the defense simply because it calls the jury's attention to a subject that the defense would, justifiably, prefer to keep from the focused attention of the trier of fact. Where as here a number of witnesses testified for both sides, and a number of factual issues were generated, it is quite plausible that jury would have had more than enough to think about without concentrating on the fact that Appellant chose not to take the stand. When, however, the trial judge twice directed their attention to this fact, the possibility of focus and consequent harm was dramatically increased.

Appellant commends to our consideration the reasoning of those cases which have found the propounding of an instruction on silence, over the defendant's objection, to be reversible error.

We now turn to the case sub judice. We note at the outset that Article 22 of the Maryland Declaration of Rights, like its federal counterpart, the Fifth Amendment to the United States Constitution, embodies the privilege against compelled self-incrimination. It is settled law in Maryland that these two constitutional provisions are parallel provisions and are in pari materia. Richardson v. State, 285 Md. 261, 265, 401 A.2d 1021 (1979); Brown v. State, 233 Md....