Pinkney v. State, 88

CourtCourt of Appeals of Maryland
Citation350 Md. 201,711 A.2d 205
Docket NumberNo. 88,88
PartiesEric PINKNEY v. STATE of Maryland. ,
Decision Date01 September 1997

Page 201

350 Md. 201
711 A.2d 205
STATE of Maryland.
No. 88, Sept. Term, 1997.
Court of Appeals of Maryland.
June 15, 1998.

[711 A.2d 207]

Page 205

Joy L. Phillips, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for appellant.

M. Jennifer Landis, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for appellee.

Argued before BELL, C.J., ELDRIDGE, RODOWSKY, CHASANOW, RAKER and WILNER, JJ., and DALE R. CATHELL, Judge, Specially Assigned.

RAKER, Judge.

In this criminal case, Appellant Eric Pinkney, a pro se defendant, was tried and convicted in a jury trial in absentia, having failed to appear at the scheduled time and place of

Page 206

trial. We conclude that the trial judge erred in finding that Pinkney waived his right to be present at trial and, accordingly, we shall reverse the judgment of the circuit court.


Pinkney was convicted of theft in violation of Maryland Code (1957, 1996 Repl.Vol., 1997 [711 A.2d 208] Supp.), Article 27, § 342. 1 At trial, the State produced a single witness, Darin Young. Young was an employee of the Music Liberated store located at the intersection of Park Avenue and Saratoga Street in Baltimore City.

Young testified that at 3:00 p.m. on May 20, 1996, he was performing his regular sales duties at Music Liberated when Pinkney entered the store. Pinkney lingered in the store for 15 minutes, and Young became suspicious when Pinkney pulled a compact disc from an inventory case and "cuffed it in his hands and pulled it close to his body." Young then retrieved two compact discs from inside Pinkney's sweat pants.

As a result of this incident, the State filed a criminal information charging Pinkney with a single count of theft of property having a value of less than $300 in violation of Article 27, § 342. Released on his own recognizance, Pinkney signed a form informing him of his right to counsel, and he was advised by the District Court Commissioner that his trial would commence July 2, 1996, in the District Court of Maryland, sitting in Baltimore City.

On July 2nd, Pinkney appeared in the District Court before Judge Martin A. Kircher, who granted Pinkney a continuance for the purpose of obtaining counsel. The "PRE-TRIAL DOCKET" form signed by Judge Kircher indicates the following: that Pinkney was advised of the right to, and the importance of, counsel; that Pinkney was advised that his next appearance without counsel could result in a waiver of that right;

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and that Pinkney was advised of the nature of the charge and the potential consequences flowing therefrom. Because Pinkney prayed a jury trial, the case was rescheduled in the Circuit Court for Baltimore City on August 14, 1996. On August 14th, Pinkney appeared in the circuit court, again without counsel. The trial judge found that Pinkney waived his right to counsel by inaction. Nonetheless, the circuit court once more continued Pinkney's case until October 1, 1996. At the conclusion of the August 14th proceeding, the trial judge both informed Pinkney of the October 1st trial date and advised Pinkney, "You don't get any [more] postponements to get a lawyer." The docket entries reflect that Pinkney was served with notice of the new trial date.

On October 1st, Pinkney's case was called for trial, but he was not present. At that time, the court ascertained that Pinkney was not incarcerated. At a bench conference, the prosecutor expressed concern that Young might not appear as a witness in the future, and suggested, "I think I can wrap it up in like 30 to 45 minutes as a trial in absentia." The circuit court agreed to try Pinkney in absentia before a jury later that afternoon.

At 2:40 p.m. on October 1st, the circuit court called Pinkney's case for trial, and proceeded to try him in his absence, and, because Pinkney was pro se, without an attorney present. The State took 70 minutes to empanel a jury and present its case. After the jury had retired to deliberate, the prosecutor approached the bench, and, apparently in reference to trying Pinkney in absentia, engaged in the following colloquy with the trial judge:

PROSECUTOR]: I don't think I'll ever suggest that again. That's the weirdest thing, I think

THE COURT: We do it all the time.

[PROSECUTOR]: Oh, it's weird.

THE COURT: I've done it before.

After 25 minutes of deliberation, the jury found Pinkney guilty on one count of theft of property having a value of less than

Page 208

$300. The trial judge then issued a bench warrant for Pinkney's arrest.

On March 18, 1997, Pinkney, now represented by counsel, appeared before the same judge in the circuit court. The trial judge informed Pinkney that a jury, on October 1, 1996, had convicted him in his absence of one count of theft under $300. At the March 18th proceeding, Pinkney's counsel attempted to explain Pinkney's absence during trial:

[711 A.2d 209] [DEFENSE COUNSEL]: Well, Your Honor, Mr. Pinkney was explaining to me that the reason why he missed his Court date was because he had a seizure and there was an ambulance that was called to his house, but he refused to go to the hospital, but he wasn't in the right frame of mind and--

THE COURT: Well, I'm sorry.

[DEFENSE COUNSEL]: And, he needed a postponement to get that verified.

THE COURT: Well, I'm sorry. He could have come late. He could have come the next day. He could have done something.... So, is he ready for disposition?

The court proceeded to sentencing, and asked Pinkney if he had anything to say before sentenced was imposed. Pinkney answered: "Yes, I would like to say that--can I get found guilty with a jury not being here? I wasn't at my jury trial." The judge responded by noting that Pinkney had "failed to come," and then sentenced Pinkney to a term of incarceration of one year.

Pinkney filed a timely notice of appeal to the Court of Special Appeals. Prior to consideration by the intermediate appellate court, we granted certiorari on our own motion.


Maryland has long recognized the right of a criminal defendant to be present at all stages of a trial. Stewart v. State, 334 Md. 213, 224, 638 A.2d 754, 759 (1994). As the United States Supreme Court observed, the right of a criminal defendant to be present at every stage of trial is "scarcely less

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important to the accused than the right of trial itself." Diaz v. United States, 223 U.S. 442, 455, 32 S.Ct. 250, 254, 56 L.Ed. 500 (1912). The right to be present at trial is a common law right guaranteed by Article 5 of the Maryland Declaration of Rights, and is also "to some extent protected by the Fourteenth Amendment to the United States Constitution, and is guaranteed by Maryland Rule [4-231]." Williams v. State, 292 Md. 201, 211, 438 A.2d 1301, 1306 (1981); see Bunch v. State, 281 Md. 680, 683-84, 381 A.2d 1142, 1144 (1978).

The constitutional right of a defendant to be present at trial is rooted largely in the right to confront witnesses and is also protected in some situations by the Due Process Clause where the right of confrontation is not implicated. United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 1484, 84 L.Ed.2d 486 (1985); Wildermuth v. State, 310 Md. 496, 528, 530 A.2d 275, 291 (1987). The right to be present at trial implicates a panoply of rights and vindicates two primary interests: enabling the defendant to assist in the presentation of a defense, and ensuring the appearance of fairness in the execution of justice. State v. Hudson, 119 N.J. 165, 574 A.2d 434, 438 (1990); see Brown v. State, 272 Md. 450, 480, 325 A.2d 557, 573 (1974) ("Trials must ... not only be fairly conducted but must ... give every appearance of so being conducted."). As the Supreme Court of New Jersey observed in Hudson:

A defendant's right to be present at trial provides protections on both an individual and institutional level. It affords a defendant the ability to communicate with counsel during trial, assist in presentation of a defense, and in the process of cross-examination. It includes the independent right of a defendant to represent himself or herself at all stages of a criminal proceeding, if he or she elects to do so. Institutionally, the defendant's right to be present at trial ensures public confidence in the courts as instruments of justice.

Hudson, 574 A.2d at 438 (internal citations omitted); see In re Cardinal, 162 Vt. 418, 649 A.2d 227, 229 (1994).

The earliest cases decided by this Court construing the scope of the right to be present resolved questions involving the denial of a defendant's right to be present at specific

Page 210

stages of a criminal trial. See Hughes v. State, 288 Md. 216, 221-27, 421 A.2d 69, 72-75 (1980) (reviewing cases); La Guardia v. State, 190 Md. 450, 456-60, 58 A.2d 913, 916-18 (1948); Duffy v. State, 151 Md. 456, 472-77, 135 A. 189, 195-97 (1926); Dutton v. State, 123 Md. 373, 386-90, 91 A. 417, 422-24 (1914). Formerly, a criminal defendant had the right to be present at all "stages of trial," and that right could neither be waived by counsel nor by the defendant's mere acquiescence. [711 A.2d 210] Porter v. State, 289 Md. 349, 352-53, 424 A.2d 371, 374 (1981). Because a criminal defendant's absence during a "stage of trial" ordinarily warranted reversal, earlier cases usually revolved around the crucial question of which procedural phases of the criminal litigation process were in fact "stages of trial." Id. at 353, 424 A.2d at 374; see, e.g., Bunch, 281 Md. at 684-88, 381 A.2d at 1144-46; Brown v. State, 225 Md. 349, 351-54, 170 A.2d 300, 301-02 (1961), cert. denied, 372 U.S. 960, 83 S.Ct. 1017, 10 L.Ed.2d 13 (1963).

In Williams v. State, 292 Md. 201, 217-20, 438 A.2d 1301, 1308-10 (1981), however, we prospectively modified the common law, and held that "[w]here 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...

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