Howell v. State
| Decision Date | 01 September 1990 |
| Docket Number | No. 659,659 |
| Citation | 589 A.2d 90,87 Md.App. 57 |
| Parties | Daniel Alphonzo HOWELL v. STATE of Maryland |
| Court | Court of Special Appeals of Maryland |
Victor A. Houlon and Richard A. Finci (Pickett, Houlon & Berman, on the brief), Hyattsville, for appellant.
Ann N. Bosse, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Alexander Williams, Jr., State's Atty. for Prince George's County of Upper Marlboro, on the brief), for appellee.
Argued before MOYLAN, GARRITY and CATHELL, JJ.
Daniel Alphonzo Howell was convicted, by a jury in the Circuit Court for Prince George's County, of first degree murder and using a handgun in the commission of a crime of violence. On appeal, he raises five issues for our consideration. They are:
I. Whether the statements made by the prosecutor in closing argument unfairly prejudiced the defendant such that he was denied the right to a fair trial and such that these statements violated his right to confront witnesses against him?
II. Whether the trial in absentia violated defendant's right to be present and his right to confront witnesses?
III. Whether the evidence was not legally sufficient to sustain the defendant's convictions for first degree murder and use of a handgun in a crime of violence?
IV. Whether the trial court erred in not allowing defense counsel to waive trial by jury?
V. Whether the delay of sixteen months and fourteen days between the initiation of the prosecution and the start of trial was a denial of defendant's right to a speedy trial?
We shall address the issues in the order we feel most appropriate, and provide the relevant facts as we discuss them. We first address appellant's second issue:
1.
Whether the trial in absentia violated defendant's right to be present and his right to confront witnesses?
While it is clear that Howell was fully aware of his trial date and time, he was not present when his trial was initially called. The court was advised that he was on his way to the courthouse. At approximately 10:35 a.m., he appeared outside the courtroom door and was told to remain there. Thereafter, jurors were called for his case, and his attorney told him to take a seat in a specified location which was no more than 200 feet from the courtroom. When counsel went to get him, he was gone. The trial court then gave Howell's trial counsel until 1:15 to ascertain Howell's whereabouts. The court reconvened at 2:00 p.m. and continued the matter until the following morning, telling the jurors to return at that time. The court made other inquiries as to Howell's whereabouts, forfeited his bond, and issued a bench warrant for his arrest.
The next morning, Howell's attorney advised the court that he was still unaware of appellant's location. The court then held a hearing on the feasibility of trying Howell in absentia, and the trial resumed without Howell. Howell was convicted. He appeared at his sentencing hearing and was heard on his reason for leaving on his original trial date. He referred to his fear of retribution by Jamaicans who were looking for him. He admitted that, a week after his trial, he had called his attorney and was advised to turn himself in, but declined to do so and remained at liberty until four or five months later when he was arrested on unrelated charges.
The factual situation in Barnett v. State, 307 Md. 194, 512 A.2d 1071 (1986), is remarkably similar to the facts of the case sub judice. The defendant in Barnett was present when the case was called for trial. He was told that jury selection would begin the next morning. He failed to appear at that time. The trial court afforded defense counsel an opportunity to investigate Barnett's absence, and the court itself made efforts to determine his whereabouts before proceeding with a trial in absentia.
The Court of Appeals, after discussing a Pennsylvania case that focused on an extreme situation where a fugitive might be completely unaware of his trial date, adopted a liberal posture on in absentia trials: "The rule taken from LaBelle, supra, which we adopt...." Id. at 210, 512 A.2d 1071 (emphasis added). Quoting from the case of State v. LaBelle, 18 Wash.App. 380, 397-98, 568 P.2d 808, 818 (1977), the Barnett Court then held:
[W]hen a criminal defendant is present at arraignment, enters a plea, receives actual notice of the time, date and place of the trial, deliberately absconds without a compelling reason, is represented by counsel at trial, and never offers a satisfactory explanation for his absence, a trial court may find such actions on the part of a defendant to amount to a knowing and voluntary waiver of his right to be present and may conduct the trial in his absence.
Id. at 208, 512 A.2d 1071 (brackets in original). In Barnett, the Court referred to numerous jurisdictions that had found a waiver of a defendant's right to be present where he had voluntarily absented himself from the trial before it commenced, and noted, in particular, that "The Supreme Court of Arizona has regularly affirmed convictions in cases where the defendant voluntarily failed to appear for any portion of the criminal trial." Id. at 209, 512 A.2d 1071 (citations omitted). Elsewhere in Barnett, the Court commented favorably on cases sustaining in absentia convictions: Id. at 208, 512 A.2d 1071 (quoting United States v. Peterson, 524 F.2d 167, 183-84 (4th Cir.1975), cert. denied, 423 U.S. 1088, 96 S.Ct. 881, 47 L.Ed.2d 99 (1976)) (citations omitted). The Court stated that the commencement of jury selection had nothing to do per se with the presence or absence of a valid waiver: Id. 307 Md. at 212, 512 A.2d 1071.
The Court then quoted favorably from Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973):
It is true that a waiver is a voluntary relinquishment of a known right and, without knowledge of a right, there can be no waiver. But the right to try a defendant in absentia rests upon his waiver of his known right to be present, not upon the (possibly unknown) court's right to try him while absent. Here, defendant knew that he had a right to be present and has failed to show that he did not voluntarily elect to waive that right.
Barnett, 307 Md. at 212, 512 A.2d 1071 (emphasis in original).
We have previously set out the factual situation that resulted in Howell's being tried in absentia. The trial judge in the case at bar continued the trial to the following day based on his belief that Howell would contact his counsel with reasons for his absence. He also had hospitals checked to make sure that Howell's absence was not caused by illness. The trial court adequately informed the jury of the in absentia proceeding and gave the appropriate cautionary instructions throughout the trial.
Howell later filed a motion for new trial and testified about his absence:
[DEFENSE COUNSEL] Did you come to this courthouse in Prince George's County on that date?
A Yes, sir.
Q What was your reason for coming to the courthouse that day?
A I came to court because I knew it was the day for my trial.
* * * * * *
A Not clearly, sir, but the last thing I remember you said you were going to pick the jury, and you take me around the back to sit on the bench and wait there.
He then testified as to what his wife told him about three men:
A ... When she went around there she saw three males and one of the guys said where is the boy? If he is here yet? ... she said she don't trust the way they look....
Q Are you saying they followed her back to you?
A Yeah....
Q How many of these guys followed her back?
A I saw two....
Q ... What happened then?
A ... I just left.
A I just feel scared.
Q Scared of who?
A Them guys. They were Jamaicans and I was scared. I figure they are connected to Ms. Brandford and they are from Miami. I was really scared. I know--I don't know them, but I know what they are capable of doing. The reason why I left they was asking if I was there.... So I just left.
Q What did you think they were going to do?
A Sir, I know they would shoot me, somebody seeking revenge. I know that for a fact.
On cross-examination, the following ensued:
Q Did you try and contact the Court, the Judge--
A No, ma'am.
Q --the day of the trial, or the day after the trial was scheduled?
A No, ma'am. No.
Q Did you try and contact the police to let them know that you were afraid for your life?
A I didn't contact the police.
The court then asked several questions:
The trial court denied...
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