Johnson v. State

• Decision Date: 12 January 1982
• Docket Number: No. 609,609
• Citation: 439 A.2d 607,50 Md.App. 584
• Parties: Ellsworth JOHNSON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 584

50 Md.App. 584

439 A.2d 607

Ellsworth JOHNSON v. STATE of Maryland.

No. 609.

Court of Special Appeals of Maryland.

Jan. 12, 1982.

Michael R. Braudes, Asst. Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

Stephen Rosenbaum, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., William A. Swisher, State's Atty. for Baltimore City, and Gregory Rothwell, Asst. State's Atty. for Baltimore City, on the brief, for appellee.

Submitted before LISS, WILNER and COUCH, JJ.

WILNER, Judge.

On the evening of February 5, 1981, Officer John Williams of the Baltimore City Police Department was approached by an unidentified middle-aged man who reported that he had observed someone in the Golden Slipper restaurant at 310 East Baltimore Street with "a gun in his top right shirt pocket." The citizen described the person as a black male in his middle thirties who was wearing a red jacket, dark blue pants, and a red shirt.

Officer Williams and his partner proceeded promptly to the restaurant about a block away, where they observed the appellant, who fit the description just recounted. Officer Williams approached appellant and, after ascertaining his identity, "frisk(ed) his outer garments." Feeling "a bulge in his top right pocket" which "felt like a gun handle," the officer reached into appellant's open coat and removed a handgun. After admitting that he did not have a gun permit, Johnson was arrested for a handgun violation.

On May 26, 1981, the case came to trial in the Criminal Court of Baltimore. A plea of not guilty was entered and, following this colloquy, which at no point indicated that appellant was aware that a jury's verdict must be unanimous, a jury trial was waived:

"MR. DURKIN (Attorney for appellant): At this time Your Honor I would like to advise my client on the record, Mr. Johnson you are entitled to a jury trial. A jury trial is composed of twelve men and women selected at random from the Voters' Registration of Baltimore City. Do you understand that?

MR. JOHNSON: Yes.

MR. DURKIN: Now you and I would have a chance to pass upon the jurors and impanel them and strike certain jurors out. Do you understand?

MR. JOHNSON: Yes.

MR. DURKIN: Now whether you are tried before a jury or tried before Judge Motsay alone, it would be the same standard, they must find you guilty beyond a reasonable doubt and to a moral certainty. Do you understand?

MR. JOHNSON: Yes.

MR. DURKIN: Now at this time, is it your election to waive your right to a jury trial?

MR. JOHNSON: Yes."

From his subsequent conviction, which yielded a sentence of two years imprisonment, appellant appeals, raising the following issues for our determination:

"1. Were the arrest and search of Appellant conducted in violation of his Fourth Amendment rights?

2. Did the trial court err in proceeding to trial without ascertaining on the record that Appellant knowingly waived his right to trial by jury?"

Because we find merit in appellant's second contention, we shall reverse the judgment of the court below and remand this case for a new trial.

Maryland Rule 735 d, ¹ as interpreted by the Court of Appeals in Countess v. State, 286 Md. 444, 455, 408 A.2d 1302 (1979), requires that before a case proceeds to trial before the court,

"the defendant have a basic understanding of the nature of a jury trial. We think that this understanding is generally satisfied when the defendant entitled to a jury trial knows that he has the right to be tried by a jury of 12 persons or by the court without a jury; that whether trial is by a jury or by the court, his guilt must be found to be beyond a reasonable doubt; that in a jury trial all 12 jurors must agree that he is so guilty but in a court trial the judge may so find." (Emphasis added.)

In point of fact, as shown from the Court's action in Fairbanks v. State, a companion case dealt with in Countess (see 286 Md. at 459-61, 408 A.2d 1302), and subsequently in Hunt v. State, 286 Md. 541, 408 A.2d 392 (1979) and State v. Ricketts, 290 Md. 287, 429 A.2d 1025 (1981), what this means is that the record must show that the defendant was told these specific facts. His "understanding" of them cannot be assumed. ²

Accordingly, the absence from the record of any indication that appellant was told "that in a jury trial all 12 jurors must agree" before rendering a verdict compels us to reverse. As the Court held in Countess, "Rule 735 means what it says, and proceeding with the trials of the cases despite the failures to comply with its provisions requires reversal of the judgments of the trial courts and entitles the defendants to be newly tried." Id. at 463, 408 A.2d 1302. "(A)s long as the Rule remains unchanged, it must be followed." State v. Ricketts, supra, 290 Md. at 293, 429 A.2d 1025.

As the case will be remanded for new trial and it is likely that the validity of the search and seizure will again be tested, we shall, for the guidance of the trial court, address appellant's first issue. In doing so, however, we first must put it in the proper perspective.

Appellant argues in his brief that (1) because "the police knew absolutely nothing about either the veracity of the informant, or the basis of his knowledge that Appellant possessed a weapon... the informant's information was of no value" in establishing probable cause for arrest and (2) since he was searched prior to his arrest, his search was not a valid search incident to arrest. That misstates the issue actually before us. Officer Williams did not immediately place appellant under arrest when he entered the restaurant. Based on the information he had received, he first conducted a "stop and frisk"-an investigative stop followed by a frisk-to see whether appellant was indeed carrying a concealed weapon, and thus might be dangerous to the officer and to other persons in the vicinity. When he discovered the "bulge," he searched for the weapon and, after finding it, placed appellant under arrest.

There can be little doubt that, if the officer properly discovered that concealed weapon in appellant's possession, he had ample probable cause to effect the ultimate arrest. The real question is whether, at the time he entered the restaurant, the officer was justified in conducting the "stop and frisk"-whether the information supplied by the unknown informant coupled with his own observations gave the officer sufficient "articulable suspicion" to warrant that limited intrusion.

The seminal case in that regard is Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). There, a police officer on patrol in a high crime area was approached by a known informant who advised that an individual sitting in a car parked nearby had narcotics and a gun in his possession. The officer approached the car, tapped on the window, and asked the occupant (Williams) to open the door. Instead of opening the door, Williams lowered the window, whereupon the officer reached in and removed a gun from Williams' waistband-exactly where the informant told him it was. The officer then placed Williams under arrest. A subsequent search of the car produced a large amount of heroin, and Williams was convicted of possession of the gun and the heroin. The case reached the Supreme Court on collateral attack through Federal habeas corpus proceedings.

The Court concluded that there had been no Fourth Amendment violation. Harking back to the principles enunciated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Court confirmed that " 'a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest' " and that " '(w)hen an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others,' he may conduct a limited protective search for concealed weapons." Adams v. Williams, 407 U.S. at 145-46, 92 S.Ct. at 1922-1923, quoting, in part, from Terry, 392 U.S. at 22, 24, 88 S.Ct. at 1880-1881.

Applying those principles from Terry, the Court held that the officer "acted justifiably in responding to his informant's tip." Id. at 146, 92 S.Ct. at 1923. In reaching that conclusion, the Court stated (pp. 146-47, 92 S.Ct. at 1923-1924):

"The informant was known to him personally and had provided him with information in the past. This is a stronger case than obtains in the case of an anonymous telephone tip. The informant here came forward personally to give information that was immediately verifiable at the scene. Indeed, under Connecticut law, the informant might have been subject to immediate arrest for making a false complaint had Sgt. Connolly's investigation proved the tip incorrect. Thus, while the Court's decisions indicate that this informant's unverified tip may have been insufficient for a narcotics arrest or search warrant, see, e.g., Spinelli v. United States, 393 U.S. 410 (89 S.Ct. 584, 21 L.Ed.2d 637) (1969); Aguilar v. Texas, 378 U.S. 108 (84 S.Ct. 1509, 12 L.Ed.2d 723) (1964), the information carried enough indicia of reliability to justify the officer's forcible stop of Williams.

In reaching this conclusion, we reject (Williams') argument that reasonable cause for a stop and frisk can only be based on the officer's personal observation, rather than on information supplied by another person. Informants' tips, like all other clues and evidence coming to a policeman on the scene, may vary greatly in their value and reliability. One simple rule will not cover every situation. Some tips, completely lacking in indicia of reliability, would either warrant no police response or require further investigation before a forcible stop of a suspect would be authorized. But in some situations-for example, when the victim of a street crime seeks...