Moore v. State

Decision Date27 June 1969
Docket NumberNo. 397,397
Citation254 A.2d 717,7 Md.App. 330
PartiesBarry MOORE a/k/a James Smith v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

Cornelius V. Roe, Towson, and Louis Peregoff, Baltimore, for appellant.

Thomas N. Biddison, Jr., Asst. Atty. Gen., Francis B. Burch, Atty. Gen., Samuel A. Green, Jr., and Edward A. DeWaters, Jr., State's Atty. and Asst. State's Atty., Baltimore County respectively, on brief for appellee.

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.

MURPHY, Chief Judge.

Appellant was convicted of robbery by the court sitting without a jury and sentenced to ten years under the jurisdiction of the Department of Correction. His sole contention on this appeal is that the court improperly entered its guilty verdict without first affording his counsel the right to argue the merits of his case.

There was evidence adduced at the trial showing that a High's Store was held up by two men, one of whom was identified by an employee of the store as the appellant. The appellant was apprehended a short distance from the store by a policeman who had received a description of the robbers. Appellant denied complicity in the robbery. At the conclusion of the appellant's testimony, the following colloquy occurred:

'THE COURT: Is that all?

MR. BRENNAN (defense counsel): That's it.

THE COURT: Anything else you want to tell me?

THE WITNESS: No, sir.

THE COURT: All right, step down.

MR. BRENNAN: That's our case, your Honor.

MR. DE WATERS (Assistant State's Attorney): That's all, your Honor.

THE COURT: Guilty on the first count. The State will stet the remaining counts.'

In Yopps v. State, 228 Md. 204, 207, 178 A.2d 879, 881, it was held that 'The Constitutional right of a defendant to be heard through counsel necessarily includes his right to have his counsel make a proper argument on the evidence and the applicable law in his favor, however simple, clear, unimpeached, and conclusive the evidence may seem, unless he has waived his right to such argument.' Yopps, like the present case, was a court trial, and the court there, as here, announced its guilty verdict immediately at the conclusion of the defendant's testimony without affording his counsel an opportunity to argue the merits of the case. When counsel in Yopps objected to the court's action in denying him the right to make an argument on behalf of the defendant, the court told him in effect that argument would not change its mind. In reversing the judgment of conviction, the court, citing from text authority, stated that it is the unquestioned right of every person tried upon a charge of crime to be heard by the court through counsel. Nothing that no opportunity was afforded counsel to begin an argument before the judge's verdict of guilty was pronounced, the court ruled at page 208, 178 A.2d at page 882 that such action was 'manifestly prejudicial to the right of the accused to be represented by counsel throughout the entire trial and amounted to a denial of his rights under Article 21 of the Declaration of Rights of this State'; and that 'Though his counsel, no matter how convincing the evidence may appear to be, the accused has the right to subject all the facts and evidence produced at the trial to a logical analysis.'

In Rome v. State, 236 Md. 583, 204 A.2d 674, the State had concluded its case against the defendants and, after argument by their counsel, motions for judgment of acquittal were denied. On the following day, the defendants, having no witnesses, renewed their motions for judgment of acquittal and after further argument by counsel on their behalf, the motion was again denied and the court forthwith announced its guilty verdict. Immediately thereafter, the court granted defendants' counsel's request to confer with his clients to determine whether they wished to testify. After conferring with the defendants, counsel made a statement 'for the record' to the effect that the defendants, having been advised of their rights, preferred not to testify. No request was made for an opportunity to further argue the case, and the court reinstated its verdicts of guilty. On these facts, the Court of Appeals distinguished Yopps and held that 'where only negative evidence was offered after the motions for acquittal had been argued twice and defense counse made no request to argue the case further, obviously because it would have been needless repetition, the reinstatement of the verdicts of guilty after each of the defendants personally declined...

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21 cases
  • Spence v. State
    • United States
    • Maryland Court of Appeals
    • August 10, 1983
    ... ... at 587, 204 A.2d 674, and that since no request was made for closing argument, in light of the earlier opportunity to argue motions for acquittal, "the reinstatement of the verdicts of guilty ... was not prejudicial ... " Id. at 588, 204 A.2d 674. In Moore a/k/a Smith v. State, 7 Md.App. 330, 254 A.2d 717 (1969), the Court of Special Appeals found no waiver of the right to closing argument from the absence of a specific request, but did not address the question of whether, in the face of such a request, the trial court could remedy the omission ... ...
  • Baker v. State
    • United States
    • Court of Special Appeals of Maryland
    • March 28, 1972
    ...ordinarily have to be tested by constitutional standards. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Moore v. State, 7 Md.App. 330, 254 A.2d 717, cert. den. 256 Md. 746. But the opinion seems to say that this is not necessarily so. It states at 400 U.S. at 484, 91 S.Ct. ......
  • Com. v. Miranda
    • United States
    • Appeals Court of Massachusetts
    • April 7, 1986
    ...Yopps v. State, 228 Md. 204, 207, 178 A.2d 879 (1962); Spence v. State 296 Md. 416, 423, 463 A.2d 808 (1983); Moore v. State, 7 Md.App. 330, 333-334, 254 A.2d 717 (1969); Jones v. State, 55 Md.App. 695, 700, 466 A.2d 55 (1983); Columbus v. Woodrick, 48 Ohio App.2d 274, 277-278, 357 N.E.2d 5......
  • Covington v. State
    • United States
    • Maryland Court of Appeals
    • May 22, 1978
    ... ...         The Court of Special Appeals, in Moore a/k/a Smith v. State, 7 Md.App. 330, 254 A.2d 717 (1969), applied the principles set forth in Yopps to a factual situation very much like the one in the instant case. Moore was a non-jury criminal case where, at the conclusion of the defense testimony, the following colloquy occurred (7 Md.App. at ... ...
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