Spence v. State

463 A.2d 808, 296 Md. 416, 1983 Md. LEXIS 265

• Court: Court of Appeals of Maryland
• Decided: August 10, 1983
• Docket: [No. 52, September Term, 1982.]
• Status: Published

Opinions

Cole, J.,

delivered the opinion of the Court. Murphy, C. J., and Smith and Rodowsky, JJ., dissent. Murphy, C. J., filed a dissenting opinion at page 426 infra, in which Smith and Rodowsky, JJ., join.

The question we shall decide is whether the opportunity to argue the merits of a criminal case after a verdict rendered prior to argument and later stricken satisfies the defendant’s constitutional right to the assistance of counsel throughout the proceedings.

The following pertinent facts were presented to the Criminal Court of Baltimore (now Circuit Court for Baltimore City) in the non-jury trial of William Spence. On the evening of June 14, 1980, Dennis McCausland was at home in his apartment when his son responded to a knock on the door. The son, apparently unable to understand the response to his question as to who was there, opened the door. Two strange men stepped into the apartment. One remained by the door, while the other, William Spence, came further into the living room, stating that he was looking for someone on the third floor. According to McCausland, a man named Edwards, the only person who lived on the third floor, was at the time in McCausland’s apartment. Spence, who was carrying a bag and appeared to have been drinking, commenced walking around the apartment, picking up items. McCausland did not follow Spence because he did not know what was in the bag. The man by the door urged Spence to leave, but Spence ignored him.

When Spence returned to the living room McCausland was sitting in a chair next to a stand with a gun on it. McCausland grabbed the gun and Spence jumped on top of him, wrestling for the gun. Everyone else fled the apartment. Several minutes later when a noise was heard from outside, McCausland let go of the gun and Spence ran from the apartment with it. He left the bag and other items in the apartment and the gun was never recovered.

The police officer who responded to the incident recovered the bag which Spence had left. The bag contained a pair of ladies’ shoes and stockings, a prescription vial with the name "C. Spence,” and some bills listed to an address in Baltimore which was the home of Spence’s mother. After the officer left McCausland’s apartment, he received a call reporting a suspicious person knocking on doors in the same apartment complex. The officer responded to the call, observed Spence in the area and arrested him.

Spence testified at trial that he was drunk on the evening in question, that he had given $80.00 to a girl to buy drugs, and that he and the other man were looking for this girl when he went to McCausland’s apartment. He had not been told not to enter the apartment. He was carrying the bag, which belonged to his mother, because he did not want to leave it in the car. He was discussing his problem with the occupants of the apartment when McCausland grabbed the gun and a struggle ensued. Spence denied picking up anything in the apartment and says he grabbed McCausland to avoid being shot. When he fled the apartment, he threw the gun down the sewer and continued to knock on doors looking for the girl with his money.

At the conclusion of the State’s case Spence moved for a judgment of acquittal and argued the motion. At the conclusion of all the evidence he renewed his motion and submitted without further argument. The court recessed for the day prior to ruling on the motion and the next day denied the motion in an oral opinion. After denying the motion, the court continued without pause in announcing the verdicts convicting Spence of robbery, burglary, assault and theft. When Spence’s counsel objected to his lack of opportunity for summation prior to the verdicts, the court struck the verdicts and directed counsel to argue the case if he desired. Counsel moved for a mistrial asserting that argument would be a waste of time. The court denied the motion for a mistrial whereupon counsel presented his closing argument. At the close of argument the court stated that it had considered counsel’s arguments but would adopt by reference all of its previous comments and findings. Spence was sentenced to 15 years for burglary, 10 years for robbery, 10 years for assault, and eighteen months for theft. On appeal the Court of Special Appeals affirmed, Spence v. State, 51 Md. App. 359, 443 A.2d 648 (1982). We now reverse that judgment.

It is well-settled in this State that the opportunity for summation by defense counsel prior to verdict in a non-jury trial as well as in a jury trial is a basic constitutional right guaranteed by Article 21 of the Maryland Declaration of Rights and the Sixth Amendment to the United States Constitution as applied to the States by the Fourteenth Amendment. We recognized the right in Yopps v. State, 228 Md. 204, 178 A.2d 879 (1962). In that case the trial judge had entered the verdict at the close of the defendant’s case. Defense counsel brought to the court’s attention that argument had not been permitted. The trial judge indicated that argument would not change his mind. This Court in reversing the conviction noted that "the same constitutional guaranty applicable to a trial by jury [right of a defendant to have counsel make a proper argument] applies with equal force to a trial before a judge sitting without a jury.” Id. at 208. The Court also stated that

the Constitutional right of a defendant to be heard through counsel necessarily includes his right to have his counsel make a proper argument on the evidence and the applicable law in his favor, however simple, clear, unimpeached, and conclusive the evidence may seem, unless he has waived his right to such argument, or unless the argument is not within the issues in the case, and the trial court has no discretion to deny accused such right. [Id. at 207 (citations omitted).]

The United States Supreme Court followed our lead in 1975. In Herring v. New York, 422 U. S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975), the Court struck down a New York statute which provided that every judge in a non-jury criminal trial had the authority to deny final summation before rendition of judgment. The Court held that the statute denied the accused the assistance of counsel guaranteed by the Sixth Amendment of the Constitution and stressed the importance of closing argument in a criminal proceeding.

There can be no doubt that closing argument for the defense is a basic element of the adversary factfinding process in a criminal trial. Accordingly, it has universally been held that counsel for the defense has a right to make a closing summation to the jury, no matter how strong the case for the prosecution may appear to the presiding judge.... [C]losing argument serves to sharpen and clarify the issues for resolution by the trier of fact in a criminal case. For it is only after all the evidence is in that counsel for the parties are in a position to present their respective version of the case as a whole. Only then can they argue the inference to be drawn from all the testimony, and point out the weaknesses of their adversaries’ positions. And for the defense, closing argument is the last clear chance to persuade the trier of fact that there may be reasonable doubt of the defendant’s guilt. [Id. at 858-62.]

The Court, citing Yopps, pointed out that the weight of authority is clear that a denial of summation before verdict is a denial of a basic right of the accused to present his defense.

We note, however, that both Yopps and Herring are factually different from the case subjudice; here defense counsel was given an opportunity to make closing argument though after the verdicts were stricken. The issue thus becomes whether a closing argument after a judge has pronounced the verdict and stricken same is sufficient to comply with a defendant’s right to have his counsel make a closing argument before verdict. We hold that it is not.

This precise issue has not arisen frequently. Generally, the cases involve circumstances where the trial court totally denied defense counsel the opportunity for summation and did not strike the verdicts. However, in several instances trial courts have been reversed where they reopened the case for argument but candidly admitted that counsel’s argument at that point would serve no purpose.

United States v. King, 650 F.2d 534 (4th Cir. 1981), is illustrative. There a U.S. magistrate presiding over an obstruction of federal property case found the defendant guilty immediately after the parties had rested without giving defense counsel an opportunity to present closing argument. In response to counsel’s objection the judge stated, "go ahead if you want to argue it. I have already made my finding. It’s not going to change anything. ... If you want to argue the case for the record, for the appeals, that’s fine as far as I’m concerned.” Id. at 536. The final disposition was a fine of $25.00. The Court of Appeals for the Fourth Circuit reversed the District Court, stating:

When we are dealing with defendants who face fines and imprisonment, we cannot permit this type of restriction on the presentation of the defendant’s case. Of course, the trial court retains the broad discretion to limit the scope and duration of all phases of a trial, including closing argument; however, this discretion must be exercised with proper regard for the defendant’s constitutional rights. [Id. at 537.]

In People v. Dougherty, 102 Cal. App. 3d 270, 162 Cal. Rptr. 277 (1980), the California appellate court addressed the precise issue before us.¹ It said, in part:

The record in this case clearly shows that there was a denial of Dougherty’s right to have a closing argument before the judge made a determination of guilt or innocence....

Insofar as the record shows, constitutional error took place in this case. Such an error cannot be cured by the judge withdrawing the finding of guilty and reopening it for the purpose of hearing argument after the decision.... Hearing the matter after a decision by the judge is totally unrealistic. Short of the actual granting of a new trial the error remains. The bell having rung cannot be unrung (see the Rubaiyat of Omar Khayyam, stanza 72). [Id. at 280 (emphasis in original) (citations omitted).]

Commonwealth v. McNair, 208 Pa. Super 369, 222 A.2d 599 (1966), also addressed the issue of argument after verdict. In McNair defense counsel requested and was refused the right of summation. In reversing the trial court, the court stated:

We cannot accept the district attorney’s argument that this denial of the right of summation was not prejudicial because of the subsequent opportunity defendant’s counsel had to review the evidence under the Act of June 15, 1951, P.L. 585, § 1, 19 P.S. § 871, in arguing the post-trial motions. We cannot reasonably conclude that an argument made after a decision has been made is always as effective as it might have been if made before such time. [Id. at 600.]

In People v. Diaz, 1 Ill. App. 3d 988, 275 N.E.2d 210 (1971), a pre-Herring case, the Appellate Court of Illinois, insightfully recognized the importance of summation prior to rendering a verdict.

A fair and impartial trial is a judicial process by which a court hears before it decides; by which it conducts a dispassionate inquiry and renders judgment only after receiving evidence. Pre-judgment is the antithesis of a fair trial. In a criminal case, our statutes and constitution contemplate that the trial include an opportunity for the defendant to argue his cause by counsel. Therefore, where a defendant is found guilty before he rests his case, without an opportunity given him or his counsel to argue his cause, and without waiver of the right to argue, he is denied a fair trial and deprived of due process guaranteed by our state and federal constitutions. [Id. at 212-13.]

United States v. Walls, 443 F.2d 1220 (6th Cir. 1971); United States v. Commonwealth of Pennsylvania, 273 F. Supp. 923 (E.D. Penn. 1967); Grigsby v. State, 333 So.2d 891 (Ala. Cr. App. 1976); Floyd v. State, 90 So.2d 105 (Fla. 1956); People v. Thomas, 390 Mich. 93, 210 N.W.2d 776 (1973); Walker v. State, 110 S.W.2d 578 (Tex. Cr. App. 1937).

We conclude, therefore, that here the trial court violated the defendant’s constitutional right to the assistance of counsel when it rendered its verdict before counsel had presented closing argument and that striking the verdict and permitting argument thereafter did not cure the defect. Counsel was effectively foreclosed from arguing to the factfinder whether the defendant entered the apartment with the intent to burgle, to rob or to steal prior to the judge announcing his decision.

In our view, at a bench trial, the presiding judge is obliged to display every indicia of having an open mind, subject to being persuaded by a logical and convincing argument, prior to announcing the verdict. Furthermore, the verdict is the moment which signals the defendant’s fate. He is constitutionally entitled to an opportunity before that moment to attempt to convince the trier of fact that he is innocent or that he is not guilty beyond a reasonable doubt. Depriving him of this opportunity is tantamount to shortening his day in court and denies him a fair trial. In our judgment, the striking of the verdict cannot restore the same stage, nor create the same atmosphere of fairness.

Moreover, due process includes the right to have counsel argue the most hopeless case to the factfinder before verdict. It is clear if counsel must argue such a case after the verdict is announced, counsel will truly be "whistling in the wind.” As the Court said in Herring, supra:

Some cases may appear to the trial judge to be simple — open and shut — at the close of the evidence. And surely in many such cases a closing argument will, in the words of Mr. Justice Jackson, be "likely to leave [a] judge just where it found him.” But just as surely, there will be cases where closing argument may correct a premature misjudgment and avoid an otherwise erroneous verdict. And there is no certain way for a trial judge to identify accurately which cases these will be, until the judge has heard the closing summation of counsel. [Id. at 863.]

Here the error was clear and the prejudice was manifest.

The State finally argues that defense counsel’s concession in his argument that the assault was a "closed question” constitutes harmless error as to the assault charge since it was probably the same argument counsel would have made before the verdicts.

At the time defense counsel’s remarks were made, the trial judge had already found the defendant guilty of burglary, robbery, theft and assault, stricken these verdicts, and instructed counsel to argue. What counsel actually said was:

As far as the assault, that’s a closed question. I don’t think he intended to assault him but if he did put him in fear by entering his house when he shouldn’t have, then it would be an assault, whether he intended it or not, because intoxication, it’s not a defense to an assault.

Whether counsel would have made these remarks if argument had been made prior to verdict we do not know. However, as we see it now, such concession by defense counsel at this stage of the proceeding may well have been his "last ditch stand” to salvage some justice from an exercise that he had already indicated to be "a waste of time.” Counsel obviously felt constrained to make some effort to change the judge’s mind and the trial judge’s closing remarks give some credence to the idea that counsel had a burden of dissuasion. The judge said:

Let me say, [counsel], I’ve listened to your argument and I don’t think there is any element of the offense or aspect of the testimony that I did not consider when I made my earlier comments.

So, having considered your arguments, [counsel] I adopt by reference all of my previous comments and findings and now make a finding beyond a reasonable doubt that all of the essential elements have been proved and the Defendant is therefore guilty----

Under these circumstances, we cannot say beyond a reasonable doubt that the error committed by the trial court in rendering the guilty verdicts prior to defense counsel’s closing argument did not contribute to defendant’s assault conviction.²

Accordingly, the judgment of the Court of Special Appeals is reversed.

Judgment of Court of Special Appeals reversed.

Case remanded to that Court to reverse the judgment of the Circuit Court for Baltimore City and remand for a new trial.

Mayor and City Council of Baltimore to pay the costs.

1 . The State correctly points out that the decision in Dougherty has been modified by In re Michael W., 122 Cal. App. 3d 349, 175 Cal. Rptr. 886 (1981); and People v. Manning, 120 Cal. App. 3d 421, 174 Cal. Rptr. 625 (1981). However, these cases only hold that the right to summation cannot he raised for the first time on appeal as was allowed in Dougherty. Thus, the arguments advanced in Dougherty are still supported by case law and are persuasive.

2 . See Dorsey v. State, 276 Md. 638, 659, 350 A.2d 665 (1976), where this Court held:

when an appellant, in a criminal case, establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed "harmless” and a reversal is mandated.