State v. McKenzie

Decision Date18 April 1973
Docket NumberNo. 70,70
Citation17 Md.App. 563,303 A.2d 406
PartiesSTATE of Maryland v. James McKENZIE.
CourtCourt of Special Appeals of Maryland

Francis B. Burch, Atty. Gen., Milton B. Allen, State's Atty., for Baltimore City, and John N. Prevas, Asst. State's Atty. for Baltimore City, for applicant.

Jerome Blum, Baltimore, for respondent.


MOYLAN, Judge.

After a removal from Baltimore City to Baltimore County for trial, James McKenzie was convicted by a jury of murder in the first degree. On appeal to this Court and represented by the same counsel who represented him at trial, his only contention was that 'it was reversible error for the defendant to testify without being advised, in the record, of his right to refuse to testify.' 1 The point not having been raised and decided below, this Court invoked Maryland Rule 1085. We concluded the opinion, 'If McKenzie honestly believes that he did not knowingly elect to testify, the avenue is open for him through post conviction procedure to air that contention.' McKenzie v. State, No. 457, September Term, 1971 (filed February 28, 1972).

On May 1, 1972, McKenzie filed a post conviction petition raising the single contention that '. . . Petitioner honestly believes that he did not knowingly elect to testify.' On that basis, he prayed a new trial. A hearing was held on his petition on July 26, 1972, before Judge John Grason Turnbull. A transcript of that hearing, with the exception of Judge Turnbull's oral opinion, is not a part of the record before us. Sufficient details of what transpired at that hearing, however, appear in the court's oral opinion, the application for leave to appeal, and the memorandum in opposition to that application, to enable us to render judgment.

At the hearing, McKenzie's trial counsel testified that he had no independent recollection of advising his client of his Fifth Amendment rights; that in a case such as this, where it was alleged the defendant acted in self-defense, it was his practice to put the defendant on the stand; and that he objected to the Assistant State's Attorney's suggestion that the court instruct the defendant about his Fifth Amendment rights prior to testifying because it might have prejudiced the case before the jury. He stated further that the defendant never objected to testifying and was willing to do so.

McKenzie testified that he was not advised by his attorney that he did not have to testify but that, even if he had been so advised, he still would have taken the stand in his defense.

The Assistant State's Attorney who prosecuted the case testified regarding his suggestion at trial that the defendant be apprised of his right against compulsory self-incrimination. He further testified that he did not overhear defense counsel at any time so advise his client.

Judge Turnbull interpreted the concluding sentence in this Court's opinion affirming McKenzie's conviction as 'practically an open invitation to Mr. McKenzie to file a petition for post conviction relief on the basis of what is alleged.' He made the following factual findings:

'I find as a fact Mr. Maxwell (defense counsel) did not advise this man of his right not to testify. I find as a fact that the State's Attorney did not advise him of his right and that the court did not. I find no obligation on the court or the State's Attorney to advise him of that right. I think the presumption is that counsel for the defendant has already advised him of his right when he calls him to the stand, but when counsel testifies that he just doesn't know whether he so advised him, there is no affirmative showing that he was advised of that right.

'. . . we have a man who finished high school, got some further courses in Heidelburg when he was in Germany, I assume in the service, who has worked as a custodial guard at the Patuxent Institution, which, of itself, needs no training in court room procedures or in constitutional rights. The question arises whether or not he is presumed to know that he had a right to decline to testify. So far as I heard this morning . . . no one specifically asked him this morning if he knew that he had a right to decline to testify . . .

'. . . of course, everyone is presumed to know the law, but a constitutional right is over and above the law, it is basic, and a person should understand his constitutional rights when he is charged in a criminal case with a violation of the law . . .

'I cannot presume that this man knew he did not have a right (sic) to testify. I cannot therefore presume that, again using the language of the Court of Special Appeals, 'If McKenzie honestly believes that he did not knowingly elect to testify, the avenue is open to him through post conviction procedure to air that contention.' He said today that if he had been advised to decline to testify he would have testified anyway. That may be his opinion today, some thirteen almost fourteen months after trial. But I find that any defendant has a right to be advised by his counsel or by the court of his right to decline to testify. And I find that the testimony here before me today is such that, as a matter of fact, I come to the conclusion that he was not advised of that right . . .'

He indicated he would grant relief:

'. . . while I don't quite know exactly what the Court of Special Appeals had in mind, it seems to me that it is more or less a directive from the court to whatever judge the post conviction proceeding came before, that if the judge came to the conclusion that he (McKenzie) was not advised of that right, that he should grant relief.'

Even though he additionally found that McKenzie's testimony 'was exculpatory, so that he didn't get hurt by examination on the record of attacking his credibility'-he had no criminal record-, the hearing judge signed an order, filed July 27, 1972, granting McKenzie a new trial. The State timely filed an application for leave to appeal from that order.

We note initially a gross misreading of what was but a passing dictum in our percuriam opinion on direct appeal. We explicitly invoked Maryland Rule 1085 so as not to decide an issue which had not been raised below. Our gratuitous advice in a parting sentence that McKenzie was not forever foreclosed from raising his point but was free to assert it in a post conviction petition, was by no stretch of the legal imagination the disposition of a complex constitutional question. What we intended to be a mere helpful signpost directing McKenzie on to the next appropriate forum was by no means intended to be 'a directive . . . that if the judge came to the conclusion that he (McKenzie) was not advised of that right, that he should grant relief.' Moreover, such a reading of the dictum would be in flat contravention of Stevens v. State, 232 Md. 33, 39, 192 A.2d 73, cert. den. 375 U.S. 886, 84 S.Ct. 160, 11 L.Ed.2d 115 (1963).

On the merits of the ruling, we note that Judge Turnbull never found that McKenzie did not know of his right not to testify. He relied exclusively upon the fine point that McKenzie was not explicitly advised of that right either by his attorney or by the trial judge, as an issue independent of whether McKenzie actually knew of that right or not. There is no law imposing such a ritualistic catechism, in the fashion of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), or Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), upon the decision to take the stand 2 and we would not, even if we had the power, choose to so further encumber already top-heavy trial procedures. Our decision here, however, does not turn upon the narrowness of Judge Turnbull's ruling in this regard.

We note further that McKenzie did not incriminate himself, which could, if we chose to rest on this point, render all consideration of whether he did or did not waive his right against compulsory self-incrimination moot. His testimony, in chief and on cross-examination, was totally exculpatory. He did not have a criminal record about which to be cross-examined. There was simply no self-incrimination of any sort. It is not being facetious to suggest that even if a prosecutor were to force a protesting defendant onto the witness stand at gunpoint, the conduct, however outrageous in other regards, would not offend the Fifth Amendment unless incriminating testimony followed. The right is not against compulsion in the abstract but against compulsory self-incrimination. Even shorn of his constitutional protection, validly or invalidly, McKenzie came through unscathed. There was simply no self-incrimination.

We note, moreover, that even if a constitutional error could be deemed to have occurred, we are convinced beyond reasonable doubt that such error was harmless. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Not only was McKenzie's testimony exculpatory, but to give it represented the only intelligent option open to him. With his sole defense being the affirmative one of self-defense and with himself as his own indispensable witness in that regard, staying off the stand would have been tantamount to unconditional surrender. McKenzie's testimony at the post conviction hearing was, furthermore, that even if he had been advised of his right not to testify, he would nevertheless have elected to testify. McKenzie is telling us, in effect, that although he would in no event have availed himself of the privilege, he nevertheless insists upon the letter of the alleged requirement that it should have been explained to him. This is precisely the sort of legal gamesmanship which the Harmless Error Doctrine is intended to counteract. Error, if any, was palpably harmless.

Our holding is, however, that no constitutional error occurred. In reaching that holding, we are, of necessity, required to sort out and to examine a...

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