Noble v. State

• Decision Date: 07 June 1982
• Docket Number: No. 8A,8A
• Citation: 293 Md. 549,446 A.2d 844
• Parties: , 33 A.L.R.4th 409 Liston G. NOBLE v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 549

293 Md. 549

446 A.2d 844, 33 A.L.R.4th 409

Liston G. NOBLE v. STATE of Maryland.

No. 8A.

Court of Appeals of Maryland.

June 7, 1982.

Louis P. Willemin, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

Michael A. Anselmi, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

ELDRIDGE, Judge.

On May 12, 1976, Liston G. Noble was convicted by a jury in the Criminal Court of Baltimore of felony murder, attempted armed robbery and using a handgun in the commission of a crime of violence. He appealed to the Court of Special Appeals, raising issues concerning the sufficiency of the evidence, the trial court's jury instructions and the prosecutor's closing argument. The intermediate appellate court affirmed in an unreported opinion, and this Court denied Noble's petition for a writ of certiorari. Noble v. State, 281 Md. 741 (1977).

More than three years after his conviction, Noble filed in the Criminal Court of Baltimore a petition under the Post Conviction Procedure Act, Maryland Code (1957, 1982 Repl.Vol.), Art. 27, §§ 645A-645J, attacking his convictions on a multitude of grounds. One of those grounds was that Noble had been denied his right under Maryland Rule 724 to be present at every stage of his trial because the voir dire questioning of a prospective juror had taken place at a bench conference which he did not attend.

After the hearing, the post conviction trial court filed an extensive opinion dealing with all of Noble's contentions. The court granted relief with respect to the attempted armed robbery conviction, holding that it merged into the felony murder conviction under the principles of State v. Frye, 283 Md. 709, 393 A.2d 1372 (1978); and Newton v. State, 280 Md. 260, 373 A.2d 262 (1977); otherwise, the court denied the post conviction petition. With regard to the contention that there had been a violation of Noble's right to be present at every stage of his trial, the post conviction trial court found that any violation of Noble's right to be present under Rule 724 was harmless error because the possible prejudice on the part of the prospective juror was against Noble, and the trial judge had excused the prospective juror.

Noble filed in the Court of Special Appeals an application for leave to appeal. The Court of Special Appeals granted the application and remanded the case to the Criminal Court of Baltimore for further proceedings on the post conviction petition, Noble v. State, 46 Md.App. 154, 416 A.2d 757 (1980). Initially, the intermediate appellate court disagreed with the harmless error ruling by the post conviction trial court, stating (46 Md.App. at 156-157, 416 A.2d 757):

"The hearing judge found that any error which may have occurred was harmless because the juror was excused by the trial judge and did not sit on the jury. Although we find it difficult to see how the applicant was injured here, the cases are legion which state that the Maryland Rules are precise rubrics to be read and followed. See, e.g., Countess v. State, 286 Md. 444, 408 A.2d 1302 (1979). It seems minor discrepancies might be permitted. Terrell v. State, 34 Md.App. 418, 421-22, 367 A.2d 95 (1977). We think the hearing judge was in error in the instant case under Bunch v. State, 281 Md. 680, 381 A.2d 1142 (1978)."

The Court of Special Appeals then held that Noble may have waived his right to be present at the bench conference by "inaction" and remanded the case for the post conviction trial court to consider the issue of waiver.

Upon remand, a further hearing was held at which Noble reiterated that, at the jury impaneling stage of his trial, he was not present at a bench conference involving the voir dire questioning and excusing of one prospective juror. He further testified that he had never previously been involved in a jury trial, that his counsel had not explained to him the jury impaneling process, that he "knew nothing about the impaneling process," that he "had no idea what was going on at the bench" conference, and that "[h]ad I known I had a right to be there, I would have requested to be there." Noble's attorney at his criminal trial also testified at the hearing, stating that he could not recall whether or not he may have advised Noble of his right to be present at the bench conference.

Following the hearing pursuant to the remand, the post conviction trial judge rendered another opinion holding that Noble was not present at the bench conference and that his "inaction constituted a waiver of his right to be present at the conference." The court denied Noble any further relief under the Post Conviction Procedure Act.

Noble again filed an application for leave to appeal which was granted by the Court of Special Appeals. Instead of deciding the merits, however, the Court of Special Appeals certified the case to this Court pursuant to Rule 1015. ¹ The certification order stated:

"This Court, in Noble v. State, 46 Md.App. 154, 161 (1980), a post conviction application for leave to appeal, held that a defendant waives his right to raise the issue that he was not present at a bench conference dealing with voir dire of the jury, unless he timely objects, even though he subsequently professes not to know that he had the right to be present at the time. The matter was remanded to the Criminal Court of Baltimore to determine whether Noble waived his right to be present at the voir dire.

"Noble v. State, as reported in 46 Md.App. 154, would, if viable, be dispositive of this Appeal ... as well as some other applications now pending....

"The question certified is whether Noble v. State, 46 Md.App. 154 (1980), correctly sets forth the law of Maryland?"

In accordance with Rule 815, this Court enlarged the certification application to include the question of harmless error and issued a writ of certiorari. ²

I.

After the issuance of the writ of certiorari but before oral argument in this case, we rendered an opinion in Williams v. State, 292 Md. 201, 438 A.2d 1301 (1981). Williams involved the voir dire questioning of prospective jurors at a bench conference attended by counsel but not the defendant. Initially in Williams, we observed that under our cases "a bench conference involving communications between the court and jurors or prospective jurors, relating to juror impartiality or disqualification, is a stage of the trial at which the defendant has a right to be personally present," 292 Md. at 212, 438 A.2d 1301. We then held in Williams that under the law of this State as it then existed, a criminal defendant's right to be present at every stage of the trial could not be effectively waived by counsel or by the defendant's mere silence. Instead, we pointed out that under a long line of cases in this Court an effective waiver of the right to be present must be by the defendant personally and must be done expressly. ³ Inaction by the defendant or his counsel would not suffice.

In the Williams opinion, we also modified for future cases the Maryland common law rule concerning waiver of the defendant's right to be present. We expressed the view that the then existing rule had become unsound in light of modern trial conditions, stating (292 Md. at 218, 438 A.2d at 1309):

"Today, with the complexity of many criminal trials and the absolute right of counsel if there is a danger of incarceration, our system proceeds upon the assumption that it is primarily counsel's function to assert or waive most 'rights' of the defendant. Unless a defendant speaks out, normally he must be bound by the trial decisions, actions and inactions of counsel. Otherwise, the system simply would not work. Estelle v. Williams, 425 U.S. 501, 512, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976); Curtis v. State, supra, 284 Md. at 145-149, 395 A.2d 464."

The Court concluded in Williams (292 Md. at 219-220; 438 A.2d at 1310):

"With respect to all criminal trials, or parts of trials, taking place after the issuance of our mandate in this case, an effective waiver of the defendant's right to be present at every stage of the trial will not always require a personal waiver by the defendant. Where the right of confrontation is not implicated, and where there is involved no other right requiring intelligent and knowing action by the defendant himself for an effective waiver, a defendant will ordinarily be bound by the action or inaction of his attorney.

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"[I]f the defendant himself does not affirmatively ask to be present at such occurrences or does not express an objection at the time, and if his attorney consents to his absence or says nothing regarding the matter, the right to be present will be deemed to have been waived."

As pointed out in the above quotation, the change in the law announced in Williams applied only to trials or parts of trials taking place after the issuance of our mandate in that case, which was on December 28, 1981. Noble's trial, of course, took place long before that time. Consequently, the waiver issue in this case is governed by the former principle that ordinarily an effective waiver of the right to be present could only be accomplished by the defendant personally and expressly. In light of this standard, Noble clearly did not waive his right to be present at the voir dire examination of the prospective juror at the bench conference.

II.

Although saying that it was difficult to see how Noble was injured by his absence at the bench conference, the Court of Special Appeals seemed to hold that, because "the Maryland Rules are precise rubrics to be read and followed," a violation of the rules, including a violation of the right to be present under Rule 724, could not be harmless error. 46 Md.App. at 156-157, 416 A.2d 757. The defendant's position concerning the applicability of the harmless ...