Noble v. State
Decision Date | 09 July 1980 |
Docket Number | No. 16,16 |
Citation | 416 A.2d 757,46 Md.App. 154 |
Parties | Liston Gary NOBLE v. STATE of Maryland. |
Court | Court of Special Appeals of Maryland |
William N. Butler, Parkton, for applicant.
Stephen H. Sachs, Atty. Gen., with whom was William A. Swisher, State's Atty., for Baltimore City.
Before GILBERT, C. J., and MORTON and THOMPSON, JJ.
Liston Gary Noble, the applicant, was convicted by a jury in the Criminal Court of Baltimore, of felony murder, attempted robbery and the use of a handgun in the commission of a crime of violence. He was sentenced to a life term for the murder, with concurrent sentences of five years for the attempted robbery and for the handgun violation. 1 The judgment was affirmed by this Court in an unreported per curiam opinion, Noble v. State, No. 769, September Term, 1976, filed on May 27, 1977. By an order dated March 21, 1980, the Criminal Court of Baltimore vacated the applicant's attempted robbery conviction but denied further relief under the Uniform Post Conviction Procedure Act. The applicant now seeks leave to appeal the denial of additional relief.
The record shows that the applicant was one of a group of four men who drove to an alley near the victim's house in order to commit a robbery. A co-defendant went into the house while the other three men, including the applicant, maintained a lookout. In a few minutes the co-defendant returned and advised the others that he had had to shoot the victim. The applicant was convicted on the basis of being a principal in the second degree.
In his application (indeed in his two applications for leave to appeal) the applicant through counsel and pro se states that a number of issues were decided erroneously by the hearing judge; the only argument, however, relates to the absence of the accused at a bench conference during the trial. Inasmuch as Md. Rule BK 46 b provides, "The application shall contain a brief statement of the reasons why the other order should be reversed or modified", we will decline to consider any issue except the absence from the bench conference. As to this issue the hearing judge found as follows:
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 hearing judge also denied relief because he felt that Haley was not to be applied retroactively, relying on the retroactivity discussion in Schowgurow v. State, 240 Md. 121, 213 A.2d 475 (1964). We think this reliance was misplaced. Unlike Schowgurow, Haley did not involve a newly decided constitutional doctrine. Rather, in interpreting Md. Rule 724, we applied the long standing common law principle that an accused has a right to be present at every stage of his trial, a right preserved by Art. 5 of the Maryland Declaration of Rights. In Bunch v. State, supra the Court of Appeals stated in language quoted by this Court in Haley :
"Long ago the Supreme Court held that proceedings during the impaneling of the jury, and involving challenges to prospective jurors on the ground of bias, constituted a stage of the trial at which the defendant had a right to be personally present, Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884)." 281 Md. at 686, 381 A.2d 1142.
Accordingly, we hold that the lower court erred in concluding that Haley was to be applied prospectively only.
It does not necessarily follow, however, the applicant is entitled to relief. Md. Code, Art. 27, § 645A (c) provides as follows:
In Haley v. State, 40 Md.App. at 354-55, 392 A.2d at 554, we stated:
It would appear from the quotation of the trial transcript by the hearing judge, the appellant's absence from the bench conference was probably not entirely clear from the trial transcript. It would seem, therefore, that the mere failure to raise the question in the direct appeal would not itself constitute a waiver. 2 There can be no question, however, that it is possible that the waiver occurred at the trial itself. Md. Rule 724 a and c provide as follows:
We do not think that the two circumstances set forth in the Rule are the only circumstances where the appellant's right to be present can be waived. The hearing judge did not address this question and we will, therefore, grant the application and remand the case for further proceedings as to the question of waiver only.
The applicant argues that the waiver must be intelligent and knowing to be effective. We do not agree. There are a number of rights, some of them constitutional, that an...
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Noble v. State
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