Reed v. State

• Decision Date: 03 September 1982
• Docket Number: No. 1214,1214
• Citation: 52 Md.App. 345,449 A.2d 448
• Parties: Emory Edward REED v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 345

52 Md.App. 345

449 A.2d 448

Emory Edward REED v. STATE of Maryland.

No. 1214.

Court of Special Appeals of Maryland.

Sept. 3, 1982.

Clarence W. Sharp, Assigned Public Defender, Annapolis, for appellant.

Stephen B. Caplis, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., Paul S Podolak, State's Atty. for Cecil County, and John L. Scarborough, Asst. State's Atty. for Cecil County, for appellee.

Argued before GILBERT, C. J., and MOORE and WILNER, JJ.

MOORE, Judge.

This appeal stems from the conviction of appellant, Emory Edward Reed, on six of the fifteen counts with which he was charged as a result of his participation in a series of criminal events occurring on September 4, 1980. Appellant was tried jointly with Arnold Murray Moore, who also participated in the escapade and was similarly convicted. Both defendants were represented by the same attorney at trial. However, only Moore was present throughout the trial. Reed failed to return to the courtroom following a recess on the first day of trial and the proceedings continued in his absence. On appeal he contends:

1. That his rights to a fair trial and due process were violated when the trial proceeded in his absence.

2. That he was denied effective assistance of counsel and due process by virtue of a conflict of interest arising from the joint representation of appellant and Moore by the same attorney.

3. That the trial court erred in permitting the consolidation of appellant's case with Moore's for purposes of trial.

4. That the evidence was insufficient to support appellant's convictions; and

5. That he was denied his right to a speedy trial.

We conclude that appellant's contentions regarding trial counsel's alleged conflict of interest are best left for resolution through other available procedures such as post conviction relief under Md.Ann.Code Art. 27 § 645A et seq., (1957, 1982 Repl.Vol.). We also find that appellant's remaining contentions lack sufficient merit to warrant reversal of his convictions. We shall therefore affirm.

I

The evidence at trial showed that in the early evening hours of September 4, 1980, appellant Reed and his codefendant, Moore, along with three other males and a female, Debbie Coates, traveled by car from New Castle, Delaware, to the home of one Noah R. Johnson, Jr., in Elk Mills, Maryland. Johnson had attended a party with Debbie Coates four days earlier at a trailer park in Chesapeake City, Maryland, and while at the party she had lost some items of jewelry during an altercation with another female, Kathy Bruner. Coates had prevailed upon Reed, Moore and the other males to assist her in recovering the jewelry but they needed Johnson's assistance to lead them to the Bruner trailer because Coates could not recall its location.

The group from New Castle arrived at Johnson's residence shortly after he had returned home from work. According to the testimony, appellant left the car in which the group had been traveling and entered the front door of Johnson's residence. After determining Johnson's identity, appellant walked to where Johnson was napping on the floor, grabbed Johnson by the hand and yanked him up and out the door. Appellant then grabbed Johnson by the hair, herded him down the porch steps into the waiting car, and demanded that Johnson take the group to the Bruner trailer.

Johnson testified that as he was being forced into the vehicle, he was struck by appellant on the side of the head with an implement described as a twisted cane. He also stated that during the journey to the trailer he was taunted and punched repeatedly, and that at one point he was threatened by an automatic pistol first brandished by Reed and then subsequently passed around to other occupants of the car until it came into the possession of the driver, Moore.

Johnson directed his abductors to the Bruner trailer and upon their arrival, Reed, Moore, and another male departed from the car and entered the trailer. There they found a babysitter and Bruner's three children. Bruner and her roommate, Steve Losten, were not there. Reed, Moore and the other male began to search the trailer for the missing jewelry. Johnson and the others subsequently were brought into the trailer to aid in the search. Johnson testified that he found one piece of the jewelry on the floor where the two girls had fought.

During the search a car bearing Bruner and Losten pulled up out front. Reed left the trailer and returned, pulling Losten with him by the hair. Reed asked Losten about the jewelry and about Losten's role, if any, in the fight between Bruner and Coates. The testimony indicates that Reed then struck Losten in the face with the twisted cane. Shortly thereafter, all of the visitors, with the exception of Johnson, began beating Losten with their fists, and with clubs, and other implements. They then left the trailer, after removing Losten's .22 caliber rifle from a gun rack on the bedroom wall.

Once outside, the group witnessed the approach of a van containing four friends of Noah Johnson. The van pulled up in front of the Bruner trailer, and following a verbal exchange between its occupants and those of the car, the car sped off with Reed, Moore, Coates, Johnson and the other three males inside. The van with its original four occupants plus Losten, followed in pursuit until the car pulled into the parking area of a liquor store. As the van approached the car, one of the occupants of the car opened fire on the van with the automatic pistol. The evidence indicates that three or four shots were fired from the passenger's side of the front seat of the car where Moore was situated. The evidence further showed that at least two of the shots struck the passenger side of the van, but that none of the van's passengers was hit.

The car then drove away from the liquor store, and the van again pursued. After traveling several miles, the car turned, proceeded down a dirt road and stopped. Moore exited the car with the pistol, and Reed with the rifle that had been taken from the trailer. The car continued down the dirt road while Reed and Moore took up positions in the woods. As the van approached, they opened fire. The van reversed direction and proceeded to a nearby house. The police were summoned. Moore and Reed rejoined their cohorts in the car, and proceeded down the dirt road in search of an alternate route of escape. Finding no way out, they attempted to turn the vehicle around. It was at this point that the police arrived and apprehended them.

Reed and Moore were each arraigned on a fifteen count indictment for their participation in the day's events. Both were represented by the same attorney. Although their cases were originally scheduled for trials on separate days, they were consolidated upon the State's motion. Appellant's counsel consented to the consolidation.

The cases went to trial in the Circuit Court for Cecil County (Mackey, J.). Following extensive voir dire, a panel of prospective jurors and alternates was chosen. Before swearing the jury, however, the court recessed for lunch, instructing all to return to the courtroom at five minutes of one. Appellant failed to return to the courtroom as instructed, and after police broadcasts for him were issued, and efforts were made to locate him at his home and at a local hospital, the trial judge, on the record and out of the jury's presence, concluded that appellant had voluntarily absented himself from the trial. Relying on the authority of Md. Rule 724, the court decided to continue with the proceedings in appellant's absence.

Appellant's trial counsel then noted on the record the "untenable position" in which he had been placed by virtue of appellant's absence. He sought to have the jury instructed upon its return that its members should draw no detrimental inference against Mr. Moore from appellant's absence. He also requested that his appearance on behalf of appellant be stricken and, in the alternative, that the case against appellant be continued. Both motions were denied, but the trial judge agreed to give the requested instruction.

The jury was returned to the courtroom and sworn. The court then gave an instruction concerning appellant's absence. The trial lasted approximately three days. The jury convicted each defendant of kidnapping, use of a handgun in the commission of a crime of violence, carrying concealed deadly weapons, carrying a dangerous and deadly weapon openly with the intent to injure, theft, assault and battery, and three counts of assault with intent to murder.

Appellant was sentenced to a total of twenty-five years in prison, and five years' probation following his release from prison. He then noted this appeal.

II

i

It is a fundamental principle that the accused in a criminal case has the right to be present at every stage of his trial. That right emanates from the common law, Tisdale v. State, 41 Md.App. 149, 396 A.2d 289 (1979), but is both protected and preserved by relevant provisions of the Federal and State Constitutions. The right of a criminal defendant to be confronted with the witnesses against him is guaranteed by both Article 21 of the Maryland Declaration of Rights and by the Sixth Amendment to the Federal Constitution made applicable to the states through the Fourteenth Amendment. von Lusch v. State, 31 Md.App. 271, 356 A.2d 277 (1976), rev'd on other grounds, 279 Md. 255, 368 A.2d 468 (1977).

In Maryland the principle is stated with particularity in Md. Rule 724. Subsection (a) of the rule provides that:

"The defendant shall be present at every stage of the trial, including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as provided by these rules."

Subsection (c) of Rule 724 addresses situations in which the accused is deemed to have waived his right to be present. Paragraph one of that subsection states that a defendant waives his right when:

"He voluntarily...