Hardaway v. State

• Decision Date: 05 September 1989
• Docket Number: No. 173,173
• Parties: Anthony E. HARDAWAY v. STATE of Maryland. Sept. Term 1987.
• Court: Maryland Court of Appeals

Page 160

317 Md. 160

562 A.2d 1234

Anthony E. HARDAWAY v. STATE of Maryland.

No. 173 Sept. Term 1987.

Court of Appeals of Maryland.

Sept. 5, 1989.

William H. Murphy, Jr. (Gary S. Bernstein, both on brief), Baltimore, for appellant.

Cathleen C. Brockmeyer, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for appellee.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL, JJ.

ELDRIDGE, Judge.

We issued a writ of certiorari in this case to decide whether it is error for a trial judge to instruct a jury, over a defendant's objection, that the defendant has a constitutional right not to testify and that no adverse inference should be drawn from his election to remain silent. We conclude that, absent special circumstances, giving this instruction after a defendant has objected to it is error.

In October 1986, Anthony Hardaway was tried before a jury in the Circuit Court for Baltimore City on a charge of attempted murder. Mr. Hardaway did not testify at the trial. At the conclusion of testimony and prior to instructing the jury, the trial judge met with counsel in his chambers. At the chambers conference, defense counsel requested that the court not instruct the jury that Mr. Hardaway had a right not to testify and that no adverse inference should be drawn from his failure to testify. The trial judge nevertheless instructed the jury as follows "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."

When defense counsel approached the bench and made an objection, the following exchange took place:

"Court: '[T]he reason I gave the instruction is because on occasion I have found that jurors comment that they thought the defendant was somehow barred from testifying because he didn't testify. Now, I know that sounds totally irrational to people familiar with the justice system like lawyers and judges, but the irrationality exists, but 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.'

"Defense Counsel: 'Your Honor, I don't think it is important that it is his decision not to testify. It is merely the fact that he didn't testify. Obviously, I advised my client out of the hearing of the jury, that they were not privy to his right and his decision. He was told he had a right to testify. I am not objecting to the substance of the instruction, merely the fact that you gave the instruction.'

"Court: 'I want to explain on the record why I was giving it, notwithstanding the fact that the defense requested not to give it. It is just a fact of life that sometimes jurors get the wrong impression of why things are done, and that is just one way to dispel one irrational notion. We can't dispel all the irrational notions of the jurors...."

The jury returned a verdict of guilty of attempted murder. After denying the defendant's motion for a new trial, the trial judge imposed a sentence of life imprisonment, suspending all but fifteen years of the sentence.

On appeal, the Court of Special Appeals affirmed, Hardaway v. State, 72 Md.App. 592, 531 A.2d 1305 (1987). Thereafter, this Court granted Hardaway's petition for a writ of certiorari, 311 Md. 698, 537 A.2d 262 (1988).

Hardaway does not dispute that the trial judge's cautionary instruction was a correct statement of the law. Rather, he urges us to rule that, as a matter of Maryland law, giving the instruction, after a defendant's request that it not be given, constitutes error. Hardaway reasons that the instruction may inadvertently harm a defendant by calling to the jury's attention the defendant's election not to testify.

The State maintains that the instruction cannot be improper since it benefits the defendant. The State further reasons that because the instruction must be given at a defendant's request, and may be given sua sponte, it is not error to give it over a defendant's objection.

The Supreme Court of the United States, in Lakeside v. Oregon, 435 U.S. 333, 98 S.Ct. 1091, 55 L.Ed.2d 319 (1978), held that giving a "no adverse inference" instruction over a defendant's objection does not violate the defendant's Fifth Amendment privilege against self-incrimination. The Lakeside Court nevertheless concluded that "[i]t may be wise for a trial judge not to give such a cautionary instruction over a defendant's objection. And each State is, of course, free to forbid its trial judges from doing so as a matter of state law." 435 U.S. at 340, 98 S.Ct. at 1095.

This Court has never flatly addressed the issue in this case as a matter of Maryland common law. In Lambert v. State, 197 Md. 22, 78 A.2d 378 (1951), where it does not appear that the defendant requested beforehand that the instruction not be given, the Court held that it was not error for a trial judge to instruct the jury not to infer guilt from the defendant's failure to testify. Nevertheless, Lambert is distinguishable from the instant case in which the defendant clearly indicated prior to the giving of the instruction that he did not want it given. ¹

Decisions by courts that have considered this issue as a matter of nonconstitutional state law generally fall into three categories. Some cases support the State's view that giving the instruction over a defendant's objection is permissible. Harvey v. State, 187 So.2d 59, 60 (Fla.App.), cert. denied, 194 So.2d 619 (Fla.1966); State v. Baxter, 51 Haw. 157, 158-159, 454 P.2d 366 (1969), cert. denied, 397 U.S. 955, 90 S.Ct. 984, 25 L.Ed.2d 138 (1970); State v. Garcia, 84 N.M. 519, 505 P.2d 862, 863 (N.M.App.), cert. denied, 84 N.M. 512, 505 P.2d 855 (1972); State v. Goldstein, 65 Wash.2d 901, 400 P.2d 368, 369, cert. denied, 382 U.S. 895, 86 S.Ct. 189, 15 L.Ed.2d 152 (1965).

A second group of decisions suggests that trial courts not give this instruction over a defendant's objection but holds that doing so is not erroneous. State v. Piper, 113 Ariz. 390, 393-394, 555 P.2d 636 (1976); Kimmel v. People, 172 Colo. 333, 336, 473 P.2d 167 (1970); State v. Perry, 223 Kan. 230, 236, 573 P.2d 989 (1977); Hill v. State, 466 S.W.2d 791, 793-794 (Tex.Ct.Crim.App.1971); Hines v. Commonwealth, 217 Va. 905, 911, 234 S.E.2d 262 (1977).

A sizable number of cases have held, however, as a matter of state law, that giving this instruction over a defendant's objection is erroneous. ² Russell v. State, 240 Ark. 97, 100, 398 S.W.2d 213 (1966); People v. Anderson, 153 Ill.App.3d 542, 106 Ill.Dec. 512, 505 N.E.2d 1303, app den., 116 Ill.2d 562, 113 Ill.Dec. 304, 515 N.E.2d 113 (1987); Priest v. State, 270 Ind. 449, 453-454, 386 N.E.2d 686 (1979); Gross v. State, 261 Ind. 489, 491-492, 306 N.E.2d 371 (1974); State v. Kimball, 176 N.W.2d 864, 869 (Iowa 1970); Commonwealth v. Buiel, 391 Mass. 744, 746, 463 N.E.2d 1172 (1984); People v. Hampton, 394 Mich. 437, 438, 231 N.W.2d 654 (1975); State v. Thompson, 430 N.W.2d 151, 153 (Minn.1988). See also People v. Molano, 253 Cal.App.2d 841, 847, 61 Cal.Rptr. 821 (1967).

Several of the cases which hold that it is error to give the instruction over a defendant's objection reason that, while the instruction is designed to benefit the defendant, it may not always be beneficial. Therefore, if the defendant believes in a particular case that the instruction is not beneficial, he should be able to forego it. This reasoning is typified by the Iowa Supreme Court in State v. Kimball, supra, where the court held (176 N.W.2d at 869):

"[T]he instruction is a comment on defendant's failure to testify even though it is supposedly for defendant's benefit and is designed to keep the jury from speculating on the reasons for his failure to take the stand and drawing improper inferences therefrom. There are those who believe the instruction is more harmful than helpful and regardless of how favorably to the accused the instruction may be worded it may inadvertently cause the jurors to consider certain adverse inferences which would not otherwise have entered their minds.

"Because of the divergent opinions in this sensitive area and as the giving of even a cautionary instruction favorable to defendant may violate the spirit of Griffin v. State of California [380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) ], supra, we believe it is advisable for us to take a definitive position on this issue. We now hold that such instruction should not be given in any future trial unless it is requested by defendant, and that it will be considered error if it is given, absent such request, in any trial...." ³

It is clear that the purpose of the cautionary instruction is to protect the defendant in the exercise of his constitutional privilege against self-incrimination. See, e.g., Lakeside v. Oregon, supra, 435 U.S. at 339, 98 S.Ct. at 1095; Anglin v. State, 244 Md. 652, 662, 224 A.2d 668, 673 (1966), cert. denied, 386 U.S. 947, 87 S.Ct. 984, 17 L.Ed.2d 877 (1967); Lambert v. State, supra, 197 Md. at 28-29, 78 A.2d 381. In fact, the entitlement to have the jury instructed that no adverse inference should be drawn from the defendant's silence is itself a constitutional right belonging to the defendant. Carter v. Kentucky, 450 U.S. 288, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981).

As the cautionary instruction is a right of the defendant, for the purpose of protecting the defendant, it should, like other rights, be waivable by the defendant. The observation by Chief Judge Murphy for the Court, in Rice v. State, 311 Md. 116, 129, 532 A.2d 1357 (1987), is applicable here:

"In [State v.] McKay [, 280 Md. 558, 375 A.2d 228 (1977),] we delved into the fundamental nature of the right to jury unanimity, and whether the right was waivable. We reasoned that the right was...