Harris v. State

• Decision Date: 01 September 1983
• Docket Number: No. 74,74
• Citation: 306 Md. 344,509 A.2d 120
• Parties: Jackie Kevin HARRIS v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 344

306 Md. 344

509 A.2d 120

Jackie Kevin HARRIS v. STATE of Maryland.

No. 74, Sept. Term, 1983.

Court of Appeals of Maryland.

May 23, 1986.

George E. Burns, Jr. and Melissa M. Moore, Asst. Public Defenders (Alan H. Murrell, Public Defender, on brief), Baltimore, for appellant.

Deborah K. Chasanow, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., on brief), Baltimore, for appellee.

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

MURPHY, Chief Justice.

On February 24, 1982, Jackie Kevin Harris entered pleas of guilty in the Circuit Court for Baltimore County to murder in the first degree, two counts of armed robbery, and a handgun violation. The court accepted the pleas and adjudged Harris guilty on all counts. Harris waived his right to be sentenced by a jury, and on April 5, 1982, the trial judge imposed the death penalty for the first degree murder, and consecutive sentences of imprisonment totaling 20 years for the remaining offenses.

On Harris's initial appeal, we affirmed the convictions, but vacated the death sentence on the ground that Harris's waiver of a jury at his sentencing had not been made knowingly and voluntarily. See Harris v. State, 295 Md 329, 455 A.2d 979 (1983) (Harris I ). Before his second sentencing proceeding, Harris moved under former Md.Rule 731 f 1 to withdraw his guilty pleas, alleging that the pleas had been entered without the effective assistance of counsel. ¹ The court denied the motion, and a new sentencing proceeding was conducted before a jury. On July 22, 1983, Harris was again sentenced to death. We subsequently vacated the court's denial of Harris's motion to withdraw his guilty pleas, and remanded the case for a hearing on Harris's claim of ineffective assistance of counsel. See Harris v. State, 299 Md. 511, 474 A.2d 890 (1984) (Harris II ).

On remand, the court conducted a plenary hearing and concluded that Harris had received effective assistance of counsel, as guaranteed by the Sixth and Fourteenth Amendments to the Constitution of the United States. ² The court, therefore, again denied Harris's motion to withdraw his guilty pleas. In Harris v. State, 303 Md. 685, 496 A.2d 1074 (1985) (Harris III ), we affirmed the order denying Harris's motion, and retained the case on our docket to review the death sentence, as required by Maryland Code (1957, 1982 Repl.Vol.), Article 27, § 414(a). ³

The parties have submitted supplemental briefs, as we directed in Harris III. We have considered the issues raised by Harris challenging the legality of the death sentence imposed upon him. We conclude that his sentence of death again must be vacated, and the case remanded for resentencing, because Harris is correct in his contention that he was denied his right of allocution.

I.

Before selection of the sentencing jury, defense counsel informed the trial judge that Harris had chosen not to testify but wanted to "present allocution as ... in any normal sentencing proceeding.... It is my belief that that is his right...." The court reserved its ruling on the issue until later in the proceeding.

Following jury selection, the parties again addressed the issue of allocution. Defense counsel reiterated that Harris desired to allocute before the jury prior to closing arguments. The State argued that, if Harris elected to allocute, defense counsel would be precluded by § 413(c)(2) from presenting a summation or closing argument because the statute provided in the disjunctive that "[t]he State and the defendant or his counsel may present argument for or against the sentence of death." (Emphasis added.) The State asserted that allocution was nothing more than a form of argument within the contemplation of this statute.

In response, the defense counsel stated that

"[m]y argument to the jury on the facts does not constitute allocution by the Defendant. He does not wish to take the stand. He does not wish to testify. He wishes to make a plea for his life to the jury....

"It's not going to be a second jury argument, Your Honor. It is going to actually be the equivalent of what any defendant says after his counsel has put on evidence and made the argument to stand up and say to the judge, I'm sorry, ... so the judge can get an impression of his demeanor even though he chooses not to testify under oath for whatever reason, which is his option.

"That is what we wish to do. As I pointed out, it's absolutely required under the law....

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"... My client is not articulate enough to stand up there for an hour [or] two and plead for his life and integrate the facts. He shouldn't be required to do that, but at the same time he wants the opportunity to simply say, I'm sorry. Don't kill me."

Defense counsel then conferred with Harris, and indicated to the court that the following proffer contained the substance of what Harris would say during allocution before the jury:

"That it is difficult for him to stand in front of them. He's not good with words or to tell them what he means, but that he's sorry for his involvement in the offense, particularly so for the fact that the man died and for the grief that his family has suffered.

"He wishes there was some way that it could be otherwise. That he would ask them to consider ... sparing his life and allowing him to live and receive a life sentence."

After hearing further argument by both parties, the court ruled as follows:

"I believe that ... Article 27 Section 413 gives to the Defendant the right to address the jury but further gives to the Defendant the right to give up that right to have Counsel address the jury. The wording of the statute says ... the Defendant or Counsel. The decision is the Defendant's whether he shall address the jury or whether [Counsel] shall address the jury, and that is for the two of you to decide, and at the appropriate time you can make that election, but it will not be that both of you shall address the jury."

After both parties' submission of evidence, but before closing arguments, defense counsel again addressed the court "[A]t this point ..., I would resubmit to the Court that my client wishes to allocute. He does not wish to waive the right to have me argue to the jury. He in fact does, and faced with that Hobson's choice, if you will, of either or, we'll submit to the Court's ruling and have me argue.

"We do maintain as we have maintained consistently that he has an absolute right to allocute in addition to his attorney. We have already put on the record the extent of allocution.

"... [W]e would ask Your Honor to reconsider at this point and allow my client to allocute.

"THE COURT: Just like any other sentencing proceeding, the Defendant has a right of allocution. The Defendant may elect to exercise that right and present himself through himself to the sentencing authority, the jury in this case or a judge in another case.

"This statute particularly and specifically grants the Defendant that right, but it further states in the statute ... that he can delegate that [right] to his Counsel. This Court is not depriving Mr. Harris of his right to address the jury. He may do so. If he elects to do so, [Counsel] may not argue, also.

"He may however waive his right to allocute personally and appoint [Counsel] to do that. He has made that decision."

(A)

Section 413(c)(2)

In Booth v. State, 306 Md. 172, 507 A.2d 1098 (1986), we explained the distinction between allocution and closing argument in the context of a capital sentencing proceeding. Although both contain unsworn statements in mitigation of the death penalty, and neither is subject to cross-examination, allocution, unlike closing argument, is not limited to the record in the case, inferences from material in the record, and matters of common human experience. 306 Md. at 198, 507 A.2d 1098; see also Bassett v. Com. 222 Va. 844, 284 S.E.2d 844, 853 (1981), cert. denied, 456 U.S. 938, 102 S.Ct. 1996, 72 L.Ed.2d 458 (1982).

As indicated earlier, § 413(c)(2) states that "[t]he State and the defendant or his counsel may present argument for or against the sentence of death." (Emphasis added.) Since allocution is neither synonymous with nor encompassed by the term "argument," the circuit court erred in concluding that this statute prevented Harris from both allocuting and having his counsel present a closing argument to the jury. The issue before us, therefore, is whether Harris had a right to allocute that was improperly denied at the sentencing proceeding.

(B) The Right of Allocution under the Maryland Rules

Since 1962, the right of allocution in Maryland has been governed primarily by the rules of this Court. Md.Rule 761, adopted on January 1, 1962, applied in both capital and noncapital cases and provided in subsection (a) that "[b]efore imposing sentence the court shall afford an accused or his counsel an opportunity to make a statement and to present information in mitigation of punishment." In 1977, this rule was rescinded and the provision governing allocution was modified and incorporated into new Md.Rule 772. ⁴ Like former Md.Rule 761, the new rule, as originally adopted, applied in both capital and noncapital cases. Subsection (d) of Md.Rule 772, entitled "Allocution," provided that "[b]efore imposing sentence the court shall inform the defendant that he has the right, personally and through counsel, to make a statement and to present information in mitigation of punishment, and the court shall afford an opportunity to exercise this right."

By chapter 3 of the Acts of 1978, effective July 1, 1978, the General Assembly enacted § 413, the present capital sentencing statute. In response to this enactment, the Court adopted Md.Rule 772A, which substantially tracked the language of § 413 and applied only to capital sentencing proceedings. The rule did not contain any provision as to allocution. The Court also amended Md.Rule 772 to apply only to noncapital cases. ⁵

Between January...