Harris v. State, s. 18

Citation295 Md. 329,455 A.2d 979
Decision Date07 February 1983
Docket NumberNos. 18,s. 18
PartiesJackie Kevin HARRIS v. STATE of Maryland. & 19.
CourtCourt of Appeals of Maryland

George E. Burns, Jr., Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender and Michael R. Braudes, Asst. Public Defender, Baltimore, on the brief), for appellant.

Deborah K. Handel, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen. and Stephanie J. Lane, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, DAVIDSON, RODOWSKY and COUCH, JJ.

COUCH, Judge.

This case comes before us upon automatic review of imposition of the death penalty pursuant to Maryland Code (1957, 1982 Repl.Vol.), Article 27, § 414. The appellant, Jackie Kevin Harris, entered a plea of guilty to murder in the first degree, two counts of armed robbery, and a handgun violation, and was found guilty of all counts by the Circuit Court for Baltimore County. Following his waiver of a jury trial to determine his sentence, and after a hearing, the trial judge imposed the death penalty plus a total of 20 years on the related offenses to run consecutively to the death sentence.

The appellant asks us to reverse his conviction because his guilty plea was not made "voluntarily with an understanding of the nature of the charge and the consequences of the plea." He also claims that he was denied effective assistance of counsel and that his waiver of a jury trial was not knowing and voluntary. Our decisions regarding these issues make it unnecessary to address other issues raised by the appellant.

Little need be said about the underlying facts giving rise to this case. The parties have submitted an agreed statement of facts which we set forth in pertinent part:

"[O]n August 9, 1981, at approximately 6:30 a.m., Appellant and Carl Brown entered the Sportsman's Limited Sporting Goods Store located at 136 Chartley Drive in Baltimore County for the purpose of perpetrating an armed robbery. Appellant was armed with a .22 caliber automatic pistol. The sole employee in the store at the time of the holdup was Stephen Conrad Hviding. During the course of the robbery, Hviding reached for a handgun which was concealed upon his person for purposes of protection. Appellant shot him before he could use the weapon, and then moved closer and shot him five additional times. He died as a result of the gunshot wounds. Thereafter, Appellant and Brown broke into and robbed a locked gun case, and robbed a customer of the store, George Lindley, at gunpoint. After forcing Lindley to lie face down on the floor, Appellant and Brown fled, carrying various weapons and ammunition in a canvas carrying case they found at the scene."

(1)

Pursuant to Maryland Rule 731 c, the trial court, upon being advised that the appellant was going to plead guilty to the charges against him, held a hearing to determine if the proffered plea was being made voluntarily with an understanding of the nature of the charges and the consequences of the plea. During the course of the trial judge's examination of the appellant, the following colloquy took place:

"Q Now, it is my understanding that you want to plead guilty to the first count of that indictment which charges you on August the 9th, 1981, with feloniously, wilfully and of deliberately premeditated malice aforethought, that you did kill and murder one Stephen Conrad Hviding, H-V-I-D-I-N-G. That charge, to which you are pleading guilty in this count, is first degree murder. That charge, also, charges second degree murder and manslaughter, but you are pleading guilty, as I understand it, to first degree murder in that count. Is that the charge to which you want to plead guilty in that count?

A The way you read it, right?

Q Yes, sir.

A The way you read it, it happened. I am pleading guilty to the charge, not--I am pleading guilty to the charge, but not the way you are saying, I done it like that.

Q Well, I'm not asking you about whether you did it or whether you didn't do it at this point, Mr. Harris, what I'm asking you is, I want to make sure I understand and you understand what you are pleading guilty to. Now, the first count charges first degree murder, second degree murder and manslaughter of Stephen Conrad Hviding. Now, it charges all three of those. You are pleading guilty, I have been told by the State, and you have entered a plea of guilty, at this point, you and your lawyer, of those three charges in that count to first degree murder.

A Yes, sir.

Q Now, is that what you want to plead guilty to?

A Yes, sir."

Thereafter the record discloses that the trial judge inquired of the prosecutor:

"THE COURT: Now, Mr. Levitz, I am now going to inquire of Mr. Harris whether or not he knows the nature of these offenses, and explain to him the nature of these offenses. Do you know, with regard to the first count, there are two possibilities that the State has to prove in that case, felony murder or murder premeditated, wilfull and deliberate. Now, is the thrust of the case, the State's case both of those or just the felony murder, so as I go over the nature of the offense with him, I will explain it to him, accordingly.

MR. LEVITZ: Well, the thrust of the State's case is both, according to the Statement of Facts."

To which the appellant's counsel responded:

"MR. RUSSELL: I foresee some problem with that, your Honor. I just want to forewarn you. I don't agree with Mr. Levitz on that. I see it as felony murder. There is no premeditation.

THE COURT: Well, I will explain to Mr. Harris what the State would have to do, what the nature of the offense is, and we will see where we go from there."

The trial judge then proceeded to explain to the appellant the nature of the charge of murder in the first degree, making clear that, under the circumstances, there were two ways the State could prove the charge, i.e., by proving the killing was wilful, deliberate and premeditated, or by proving that the killing occurred in the perpetration of or attempt to commit certain crimes, including robbery. The appellant told the trial judge that he understood and that he was pleading guilty of his own free will. Subsequently, the trial judge advised the appellant of the possible consequences of a conviction and what he was giving up by pleading guilty. After an agreed statement of facts was presented to the court, the appellant told the court that he agreed to those facts. The trial judge then found that the statement of facts was sufficient to prove the appellant's guilt of the charges beyond a reasonable doubt and ordered the clerk to enter up a finding of guilt as to the four counts (the docket entry reflects, "Verdict: GUILTY as to Counts one (1) 1st Degree Murder, ...").

During the subsequent sentencing proceeding, it came to light that the appellant claimed he only pleaded guilty to felony murder, not premeditated murder. The appellant's counsel stated that he had made himself clear on the record on this point, and the trial judge stated that the record would speak for itself. During closing argument, the appellant's counsel based his entire argument on the theory that the appellant was guilty of felony murder and since the State had shown no aggravating factor other than the underlying felony, the death penalty could not be imposed. The trial judge, in rendering his decision, stated in pertinent part:

"Now, in that proceeding, the defendant pled guilty to the first count, first degree murder; the second count, the fourth count and the sixth count.

As to the first degree murder count, count number one, and this is all in the Court Reporter's notes which I went over very carefully, the Court asked the State what the thrust of its case was as to the first count, and the State said that it was as to both murder in the first degree for premeditated, wilful and deliberate act and for felony-murder. The Court went over with the defendant the rights that he is waiving by pleading guilty, and I explained to the defendant the nature of the offense in the first count, and I explained that the State could obtain a conviction on, either, premeditated, wilful and deliberate act, first degree murder, or, felony-murder or both, and defined each of those for him. The proceedings went on, and, at the end of the proceedings, the Court heard a statement of facts, and the Court then found the defendant guilty of first degree murder and the second, fourth and sixth counts.

Now, examining the facts in this case and examining that record, the defendant did not plead guilty to felony-murder, he pled guilty to first degree murder."

Thereafter the trial judge found the facts sufficient to support a finding of guilt both as to wilful, deliberate, premeditated murder as well as felony murder.

The appellant now contends that he was "confused ... as to the nature of the offense to which the plea was being entered." Furthermore, he argues that his "counsel did not understand to what charge [he] was pleading guilty" and that "[a] confused defendant advised by a mistaken counsel does not provide a basis for an acceptable guilty plea."

It is now settled that the court may not accept a guilty plea unless, after an examination of the defendant on the record in open court, it determines that the plea is made voluntarily with an understanding of the nature of the charge and the consequences of the plea. Md.Rule 731 c; State v. Priet, 289 Md. 267, 424 A.2d 349 (1981). In Priet, Chief Judge Murphy stated for the Court:

"Consistent with the principles espoused in the majority of these state and federal cases, and with the rationale underlying our decision in Davis, Rule 731 c does not impose any ritualistic or fixed procedure to guide the trial judge in determining whether a guilty plea is voluntarily and intelligently entered. The rule does not require that the precise legal elements comprising the offense be communicated to the defendant as a prerequisite...

To continue reading

Request your trial
41 cases
  • Jones v. State
    • United States
    • Maryland Court of Appeals
    • September 16, 1987
    ...created by statute. Art. 27, § 413. Even though a constitutional right is not involved, however, we indicated in Harris v. State, 295 Md. 329, 339, n. 1, 455 A.2d 979 (1983), that to be effective, a waiver must be made knowingly and voluntarily. See also Tichnell v. State, 287 Md. 695, 743-......
  • Pugh v. State
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1994
    ...(1983)). Ordinarily, "consideration of a claim of ineffective counsel is best left to a post conviction hearing...." Harris v. State, 295 Md. 329, 337, 455 A.2d 979 (1983); see also Hunt v. State, 321 Md. 387, 407, 583 A.2d 218 (1990), cert. denied, 502 U.S. 835, 112 S.Ct. 117, 116 L.Ed.2d ......
  • Burch v. State
    • United States
    • Maryland Court of Appeals
    • September 1, 1996
    ... ... Heath William BURCH, ... STATE of Maryland ... No. 38, Sept. Term, 1996 ... Court of Appeals of Maryland ... July 3, 1997 ...         [696 A.2d 446] ... Page 258 ... Mark Colvin, Assistant Public Defender, John L. Kopolow, Assistant Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for Appellant ...         Thomas K. Clancy, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, on brief), Baltimore, for Appellee ... Page 259 ...         Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, ... ...
  • Brooks v. State
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1994
    ...(1990). A defendant who does not actively waive the right to a jury sentencing will automatically receive one. In Harris v. State, 295 Md. 329, 338-40, 455 A.2d 979 (1983), the defendant argued that the trial judge erred by failing to advise him properly that the jury's failure to reach a u......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT