Bishop v. State

7 A.3d 1074

417 Md. 1

Robert Harvey BISHOP, Jr.

v.STATE of Maryland.

No. 1, Sept. Term, 2010.

Court of Appeals of Maryland.

Nov. 4, 2010.

Allison M. Sayers, Assistant Public Defender (Paul B. DeWolfe, Public Defender, Baltimore), on brief, for petitioner.

Michelle W. Cole, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore), on brief, for respondent.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.

BATTAGLIA, J.

*4 In this case, Robert Harvey Bishop, Jr., Petitioner, charged with two counts of sexual abuse of a minor and related offenses, and the State, Respondent, entered into an agreement entitled, "PLEA BARGAIN: EXPLANATION OF AND ACKNOWLEDGMENT OF RIGHTS * * * NOT GUILTY, AGREED STATEMENT OF FACTS PLEA." Thereafter, during a judicial proceeding, the State presented Bishop's confession, which was later suppressed by the Court of Special Appeals on Sixth Amendment grounds, as well as a recording of telephone conversations, in which Bishop was a party, that was never admitted into evidence, about which Bishop's counsel expressed pause, without any attempt at clarification by the State, in addition to a proffer of the two child victims' testimony. From the decision of the Court of Special Appeals, affirming his conviction on the basis of harmless error, Bishop filed a Petition for Writ of Certiorari in this Court, which we granted, Bishop v. State, 411 Md. 740, 985 A.2d 538 (2009), in which he presented the following questions:

1. Where the parties have proceeded by way of an agreed statement of facts, may an appellate court rely on evidence that was proffered by the State but disputed by the defense in determining that the improper denial of a motion to suppress is harmless error?

2. Under the circumstances of this case, did the intermediate appellate court err in holding that the improper denial of the motion to suppress Petitioner's confession to the police is harmless error?

In response to these questions, which we will address as one, we shall vacate the judgment of the Court of Special Appeals and remand to the Circuit Court for Cecil County for further proceedings, because harmless error analysis cannot be applied to the suppressed confession due to the murky record in this case, based upon the muddled plea agreement and proceedings themselves, coupled with an apparent dispute regarding the contents of telephone conversations, the recordings or transcripts of which were never admitted into evidence.

In July 2007, Bishop, accompanied by counsel, appeared before a judge in the Circuit Court for Cecil County. An Assistant State's Attorney called the case "for the purpose of plea at this time," and the following ensued:

[STATE'S ATTORNEY]: The defendant is going to enter a not guilty on a statement of facts to Count 1 and Count 3, which are both child sexual abuse counts. The state will nolle pros the other two counts in return for the plea.

We will be requesting a PSI and a new sentencing date. At the time of sentencing the state would recommend that twenty-five years be imposed; that ten be suspended; the defendant to serve fifteen years; five years supervised probation upon release.

The counts, of course, are mandatory registration counts, and I believe that is a fair and accurate statement.

[DEFENSE COUNSEL]: That's correct, your Honor, that's fair and accurate. For the record ... we had a motions hearing on the 25th of May; and for purposes—for any appellate purposes we are agreeing to go forward with the not guilty statement of facts,based on the decisions made at the motions hearing, or the denial of our motion for suppression at that motions hearing, your Honor.

Following the presentation of the plea agreement, the following exchange occurred between the clerk and the judge:

[CLERK OF THE COURT]: All right. Mr. Bishop, if you would stand, please.

THE COURT: He doesn't need to be sworn, madam clerk, for a not guilty plea.

The judge then inquired into Bishop's decision to waive his right to a jury trial:

THE COURT: Before we can proceed, Mr. Bishop, I have to ask you a number of questions, make a number of statements, to make sure in my mind that you understand what you are doing, you are doing it voluntarily, with full understanding of possible consequences.

First of all, you are here because you have been indicted by the grand jury here in Cecil County. Because of the nature of the charges returned and the possible penalties, you are entitled to a trial by jury. Now obviously if you are attempting to proceed on a not guilty plea agreed statement of facts there will be no trial by jury; but you still have to waive that right affirmatively on the record in open court.

Are you waiving your right to a trial by jury?

[BISHOP]: Yes, your Honor.

THE COURT: This form that you and your attorney have filled out, do you have any questions about that form at all?

[BISHOP]: No, your Honor.

THE COURT: It explains to you in writing the rights that you are waiving by not having a trial by jury. Do you have any questions about those rights at all?

[BISHOP]: No, your Honor.

*7 The form referenced, which was signed by Bishop and his counsel, provided, in pertinent part:

PLEA BARGAIN: EXPLANATION OF AND ACKNOWLEDGMENT OF RIGHTS NOT GUILTY, AGREED STATEMENT OF FACTS PLEA FUNCTIONAL EQUIVALENT TO A GUILTY PLEA—NO DIRECT APPEAL RIGHT (MD. RULE 4-242(c)) ¹

Before the Court can accept your proceeding by way of a not guilty plea on an agreed statement of facts to one or more offenses to which you will no doubt be found guilty, you must answer some questions because the Court wants to make sure that you know what you are doing, you know what your rights are and you understand those rights, and that you are proceeding by way of an agreed statement of facts voluntarily.

1. My name is [Robert Harvey Bishop].

2. I am [36] years of age.

3. The farthest I went in school was [high school grad. & tech. school].

4. I [can] read and write.

5. I am not presently under the influence of alcohol, drugs, narcotics, other pills or suffering from withdrawal symptoms from the use of them.

6. Have you ever been under the care of a psychiatrist or a patient in a mental hospital or institution? [Yes].

7. Is there anything presently wrong with you? [No].

8. I have discussed the matter of proceeding by way of an agreed statement of facts with my attorney and my attorney has advised me of my rights. I am technically pleading not guilty to the offense(s) listed below in paragraph 9. However, my attorney, the prosecutor and I have agreed on a particular statement of facts concerning the offense(s) listed below in paragraph 9. Instead of my having a judge trial or a jury trial on the offense(s) listed below, the state or defense will present our agreed upon statement of facts to the court. That agreed upon statement of facts will be sufficient for the judge to find me guilty of the offense(s) listed below in paragraph 9. By proceeding in this manner I am still pleading not guilty and denying guilt. I am not admitting to any of the conduct necessary to establish guilt. However, this is the "functional equivalent" of a guilty plea in that I am giving up a number of rights that a person entering a straight guilty plea under Md. Rule 4-242(c) gives up. After consulting with my attorney, I am proceeding in this manner because of the plea agreement and because I believe this is the best course of action I can take in this case.

9. I am proceeding by way of a not guilty plea on an agreed statement of facts to the following: Offense # 1: [child sex abuse] and Offense # 2: [child sex abuse]. As to each offense, if I were to proceed to trial, the State would have to prove beyond a reasonable doubt to a jury, if I had a jury trial, or to a judge, if I had a Court trial, the following matters which are called "elements" of the offense: Offense # 1: __________ Offense # 2: __________. In this case the agreed statement of facts will be sufficient for the court to find me guilty of each offense listed above.

10. I understand that the offenses carry the following maximum penalties: Offense # 1: [25 yrs] [and] Offense # 2: [25 yrs].

11. No one made me a promise of a lesser sentence, probation, reward, immunity or anything else in order to get me to proceed in this manner, other than the plea agreement, which is: [plea to above counts, dismiss remaining].

* * *

12. I understand that by proceeding in this manner I am giving up my absolute right to plead not guilty and have a trial. If I pled not guilty and had a trial, the State would have to prove each and every count against me by proof beyond a reasonable doubt and to a moral certainty. I understand that under the law I am presumed to be innocent, and if I pled not guilty and had a trial, the State would have this burden of proving each and every count against me.

13. I understand that in order for the State to prove me guilty beyond a reasonable doubt, it would have to bring into open court witnesses who would have to testify in front of me, and my attorney and I would have the right to cross-examine them. I understand that by proceeding in this manner today, I am giving up that right to require the State to produce evidence and witnessesagainst me and the right to cross-examine those witnesses.

14. I understand that by proceeding in this manner I am giving up my right to be tried by a judge or jury. A trial by a judge would be a trial by a judge of the circuit court. I could not be found guilty in a judge trial unless the judge decided beyond a reasonable doubt and to a moral certainty that I was guilty. A jury trial would be a trial by a group of twelve men and women from Cecil County chosen at random from the lists of registered voters, licensed drivers, and persons not licensed but who have state identification cards. My attorney and I would participate in the selection of that jury. The jurors would be young and old, black, white, male, female, educated, uneducated and their verdict

...