Martin v. State

• Citation: 535 A.2d 951,73 Md.App. 597
• Decision Date: 01 September 1987
• Docket Number: No. 542,542
• Parties: Thomas Eugene MARTIN, v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 597

73 Md.App. 597

535 A.2d 951

Thomas Eugene MARTIN, v. STATE of Maryland.

No. 542, Sept. Term, 1987.

Court of Special Appeals of Maryland.

Jan. 13, 1988.

Jose Felipe Anderson, Asst. Public Defender (Alan H. Murrell, Public Defender, on the brief), Baltimore, for appellant.

Ann E. Singleton, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, M. Kenneth Long, State's Atty. for Washington County and Andrew G.W. Norman, Asst. State's Atty. for Washington County, on the brief), Hagerstown, for appellee.

Submitted before WILNER, BISHOP and ROSALYN B. BELL, JJ.

WILNER, Judge.

In Stevens v. State, 232 Md. 33, 192 A.2d 73, cert. denied 375 U.S. 886, 84 S.Ct. 160, 11 L.Ed.2d 115 (1963), the Court of Appeals concluded that it was not "essential for the protection of a defendant's constitutional rights that he be advised by the court of his right against self-incrimination when he is represented by counsel." Id., 39, 192 A.2d 73. We said the same thing in State v. McKenzie, 17 Md.App. 563, 303 A.2d 406 (1973).

Both courts intimated, however, that where the defendant is proceeding without counsel, the trial court did have some duty in this regard. In Stevens, the Court cited an Annotation appearing in 79 A.L.R.2d 643 (1961) for the proposition that "[m]ost jurisdictions which have considered the point have held that failure by a trial court to advise a defendant not represented by counsel of his right to refuse to take the witness stand constitutes prejudicial error." 232 Md. at 39, 192 A.2d 73. ¹ In McKenzie, we examined the cases cited in the A.L.R. Annotation and observed that:

"the requirement upon the judge to give a warning to an unrepresented defendant, is aimed at protecting the defendant from compulsory self-incrimination. Defendants should not be called to the stand by the prosecutor or the judge; nor should they be led to believe that they are required or expected to take the stand. The Annotation, and its supporting cases, say no more than this. The single sentence in Stevens which summarizes this point should not be read carelessly or overbroadly, cut loose from the moorings of its supporting authority."

17 Md.App. at 593, 303 A.2d 406.

As the defendant in both Stevens and McKenzie was indeed represented by counsel and was called to testify by his attorney, these observations as to the court's duty when dealing with an unrepresented defendant were in the nature of dicta. We now have the case of an unrepresented defendant and the issue of just what kind of advice, if any, the trial judge must give him.

Appellant was charged in the Circuit Court for Washington County with unlawful possession of controlled paraphernalia--a hypodermic syringe. The syringe was discovered in a pickup truck being driven by appellant.

Appellant waived his right to counsel and elected to proceed pro se. At the conclusion of the State's case, the court addressed him: "Mr. Martin, if you wish to testify, you must come up and be sworn. You are under no obligation to do so and it will not be held against you if you do not."

Without further colloquy, appellant took the stand and gave his version of the event. Essentially, his story was that he was helping a friend move some furniture and was unaware that the syringe was in the truck. On cross-examination, the prosecutor attempted to impeach appellant's credibility by showing an earlier conviction for possession of marijuana with intent to distribute.

The jury obviously did not believe appellant's protestation of innocence, for it found him guilty, whereupon the court imposed a sentence of four years imprisonment. The sole question presented for review is whether the court denied him due process of law "when it failed to properly advise him of the consequences of his election to testify." He argues, in particular, that, at a minimum, the court was obliged to inform him that (1) "if he took the witness stand, he could be impeached," and (2) the jury would be instructed as to the presumption of innocence if he elected not to testify. Absent this advice, he claims, his waiver of his right to remain silent cannot be regarded as knowing and intelligent.

We have been referred to no case, nor are we aware of one, that supports appellant's thesis.

At one time, this Court was of the view that, under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), it was incumbent upon a trial court, before accepting a plea of guilty, to inform the defendant specifically that such a plea constitutes a waiver of his Fifth Amendment right against self-incrimination. In that regard, and in that context of accepting a guilty plea, we had, on one occasion, suggested that the trial judge inform the defendant "not only that his failure to testify may not be used as a basis for comment against him but also that it may not be used as an inference to be weighed on the issue of guilt." See Davis v. State, 28 Md.App. 50, 58, 343 A.2d 550 (1975). It is important to note, however, that (1) even in that extended view of Boykin, we never suggested that the defendant had to be informed about his subjection to cross- examination and impeachment if he testified, (2) we made clear in Davis that failure to inform the defendant that no inference could be drawn from his silence "does not constitute reversible error where, as here, the constitutional privilege against self-incrimination has been adequately identified and verbalized in non-technical language," id., 58, 343 A.2d 550, and (3) the Court of Appeals, reviewing our Davis, concluded that Boykin did not require specific reference to the right against self-incrimination in the first instance. See Davis v. State, 278 Md. 103, 361 A.2d 113 (1976).

As the Stevens Court noted, a number of appellate courts throughout the country have concluded that a trial court should inform an unrepresented defendant of his right to remain silent before allowing him to testify and that failure to do so can (or will) amount to prejudicial error. This rule was first invoked in cases where some element of compulsion was found--where the court made some remark intimating that the defendant should testify or where the prosecutor called him as a State's witness and no one informed him that he did not have to testify. See, for example, People v. Chlebowy, 191 Misc. 768, 78 N.Y.S.2d 596 (S.Ct. Erie Co. 1948); People v. Morett and Holm, 272 A.D. 96, 69 N.Y.S.2d 540 (1947); State v. Blosser, 158 W.Va. 164, 207 S.E.2d 186 (1974); State v. Agresta, 5 Conn.Cir. 242, 250 A.2d 346 (1968); Killpatrick v. Superior Court, 153 Cal.App.2d 146, 314 P.2d 164 (1957); Cochran v. State, 117 So.2d 544 (Fla.App.1960). But it has also been applied where there was no such coercion--where, at the neutral invitation of the court, the defendant volunteered to testify. See R.V.P. v. State, 395 So.2d 291 (Fla.App.1981); People v. Kramer, 227 Cal.App.2d 199, 38 Cal.Rptr. 487 (1964); People v. Solomos, 83 Cal.App.3d 945, 148 Cal.Rptr. 248 (1978), and other California cases cited therein.

The basis of the rule in either situation is that a defendant may not be called to the stand unless he waives his privilege against compelled self-incrimination and that "[h]e cannot be charged with a waiver of the privilege unless it appears that he was aware of its existence and its surrounding safeguards and voluntarily and intelligently elected to refrain from asserting it." People v. Chlebowy, supra, 78 N.Y.S.2d at 600; State v. Agresta, supra, 250 A.2d at 349; State v. Blosser, supra, 207 S.E.2d at 189. This underpinning of the rule is unimpeachable. The Fifth Amendment right against self-incrimination is regarded as one of the "fundamental" Constitutional rights, to which the Johnson v. Zerbst waiver standard is applicable, i.e., "an intentional relinquishment or abandonment of a known right...." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938); Curtis v. State, 284 Md. 132, 143, 395 A.2d 464 (1978). Under this standard, it is clear that a defendant cannot waive a right of which he has no knowledge. For a court to find a valid waiver in the case of an unrepresented defendant, therefore, the record must show that the defendant was informed of the right; ordinarily, that advice will have to come from the trial judge.

For these reasons, we now clearly hold that, before permitting an unrepresented defendant to testify, the court must inform the defendant of his correlative Constitutional rights to testify or avoid the prospect of compelled self-incrimination by declining to testify.

The question then becomes,...