Tilghman v. State

Page 542

117 Md.App. 542

701 A.2d 847

Montro Lorell TILGHMAN v. STATE of Maryland.

No. 856, Sept. Term, 1996.

Court of Special Appeals of Maryland.

Oct. 29, 1997.

Christopher A. Griffiths (Roberts & Wood, on the brief), Riverside, for Appellant.

Mary Ann Ince, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, Baltimore, and Michael C. Maloney, State's Attorney for Dorchester County, Cambridge, on the brief), for Appellee.

Argued before HARRELL, SALMON and BYRNES, JJ.

BYRNES, Judge.

A jury in Dorchester County convicted appellant Montro Lorell Tilghman of robbery with a deadly weapon, robbery, carrying and wearing a handgun, use of a handgun in the commission of a robbery, theft, assault, and battery. After merging what it determined to be the lesser included offenses, the trial court sentenced appellant to fifteen years imprisonment for robbery with a deadly weapon, a consecutive ten years for use of a handgun in the commission of a robbery, and concurrent terms of ten and three years for battery and carrying and wearing a handgun, respectively.

Appellant presents three questions for review, which we have combined and reworded for clarity:

I. Did the trial court err in not taking action to assure that appellant was properly advised of the risk of impeachment attendant to exercising his constitutional right to testify, before appellant waived that right?

II. Did the trial court err in sentencing by a) failing to merge appellant's conviction of battery into his conviction for robbery with a deadly weapon? and b) failing to merge appellant's conviction for carrying and wearing a handgun into his conviction for use of a handgun in the commission of a crime of violence?

We answer "no" to question one and affirm the judgments. With respect to question two, we find that the trial court did not err in imposing the sentence for battery but did err in sentencing appellant for carrying and wearing a handgun; accordingly, we vacate that sentence.

FACTS

In the early morning hours of July 23, 1995, Dwayne T. Batson was sitting on the wall of the Pine Street amphitheater in the town of Cambridge, taking a break from riding his mountain bike. Appellant approached Batson with a handgun and demanded that he turn over the bicycle. Batson resisted at first, but then complied. Appellant took the bike and left.

Batson walked to the next street, where he encountered a woman whom he recognized to be a friend of appellant. As Batson and the woman were engaged in conversation, appellant suddenly reappeared, holding a wooden board in one hand and the handgun in the other. Appellant charged after Batson, who ran. Appellant gave chase, eventually catching up to Batson, who then hit appellant with his fist. Appellant dropped the board, fell to his knees, and shot Batson in the right thigh with the handgun. Batson fled, with appellant still shooting at him. He found his bicycle in some bushes, and rode it to his girlfriend's house. His girlfriend called the police and an ambulance, which transported Batson to the hospital, where he was admitted for treatment. The police interviewed Batson at the hospital. Batson told them that he had been robbed and shot by a person named "Montro." The police compiled a photographic array, from which Batson identified appellant as his assailant.

On September 20, 1995, appellant was charged by information with robbery with a deadly weapon; robbery; assault with intent to rob; assault with intent to murder; two counts of carrying and wearing a handgun; two counts of use of a handgun in the commission of a crime of violence (one each for the robbery and assault with intent to murder charges); theft under $300.00; reckless endangerment; assault; and battery. Counsel entered her appearance on appellant's behalf on October 24, 1995 and, the following month, filed a motion challenging appellant's competency to stand trial.

On December 22, 1995, Donald W. Nachand, Ph.D., of Clifton T. Perkins Hospital Center, examined appellant and determined that he was competent to stand trial under the standards set forth in Health General §§ 12-101, et. seq. of the Maryland Code Annotated (1994 Repl.Vol.). In his December 27, 1995 report, Dr. Nachand assessed appellant as follows:

The defendant is a 24 year old male with a sixth grade educational level. He has an established diagnosis of mild mental retardation, and he is illiterate. He is also reported to have had transient psychotic episodes in the past, but this is not a current problem. In interview today the defendant is alert and adequately oriented. Both recent and remote memory are intact. His speech is clear and fluent, and his responses are relevant and coherent. There is no appearance of delusion or hallucination. He expresses no unusual thought content. His mood is baseline and the underlying affect tone is normal. There is no unusual elevation of anxiety. He has an adequate understanding of the charges placed against him and of the possible consequences. He has an adequate understanding of the basic legal procedure. He appears capable of cooperating with his attorney in the preparation of his defense.

IMPRESSION: Mild mental retardation.

Appellant's counsel stipulated to Dr. Nachand's report, and on January 18, 1996, the trial court ruled that appellant was competent to stand trial.

When the case was called to trial, on April 18, 1996, the State entered a nolle prosequi to the assault with intent to rob and reckless endangerment charges. At the close of the State's case, the trial court granted appellant's motion for judgment of acquittal as to one charge of carrying and wearing a handgun. The trial judge then asked appellant's counsel, "Would you like to advise your client?" Counsel took a moment to confer with appellant, and the following colloquy ensued: ¹

COUNSEL: Mr. Tilghman, you and I have previously discussed your right to testify, is that correct?

APPELLANT: Yes.

COUNSEL: And you understand that you have a constitutional right to testify today if you so choose?

APPELLANT: Yes, Ma'am.

COUNSEL: And you understand that if you choose to testify the state attorney may cross-examine you and the court might ask you questions for clarification?

APPELLANT: Yes.

COUNSEL: Do you understand if the States Attorneys cross exams you here, and if it's indicated to me that you have a prior conviction that he will ask you about those convictions?

APPELLANT: Yes.

COUNSEL: And do you understand that you also do not have to testify today?

APPELLANT: Yes.

COUNSEL: That if you decide you do not want to testify I'll ask the judge to give the jury instructions that says just because you didn't testify doesn't mean your guilty, that the jury can't ask that at all?

APPELLANT: Yes, Ma'am.

COUNSEL: And that I would ask the judge to give that instruction and he would give that instruction?

APPELLANT: Yes.

COUNSEL: And, is it correct you and I have talked about whether or not you wish to testify or not?

APPELLANT: Yes.

Appellant did not testify. The defense called three witnesses, two of whom were relatives of appellant; the other was a casual acquaintance. All three testified that they had witnessed an altercation between appellant and Batson, during which shots rang out, and that appellant was not carrying a gun at the time.

The jury acquitted appellant of assault with intent to murder and use of a handgun in the commission of that crime and convicted him of all of the remaining charges. The trial court merged the robbery and theft convictions into the robbery with a deadly weapon conviction and merged the assault conviction into the battery conviction. It then sentenced appellant as described above. This appeal followed.

DISCUSSION

I

At the time of trial, appellant's criminal record listed two convictions for possession of cocaine; two convictions for battery; and one conviction each for cruelty to animals, assault, resisting arrest, and burglary. ² In her on-the-record advice to appellant about his right to testify, counsel commented upon his risk of being impeached with his prior convictions. Appellant now contends that the advice that his attorney gave him about impeachment was legally incorrect in that it implied that, if he were to testify, all of his prior convictions could be used to impeach his credibility, when that was not the case. ³ He maintains that, as soon as the trial court heard counsel impart this erroneous advice, it was required to intervene to assure that he was properly informed about the risk of impeachment that he might face on the witness stand. This was especially so, appellant contends, given that the trial judge knew that he was mildly mentally retarded and had invited counsel to place her advice to appellant on the record. ⁴ Finally, appellant concludes that the trial court's error in failing to intervene prejudiced him by causing him ineffectively to waive his constitutional right to testify.

As we shall explain, we find that the trial court did not err, as the circumstances in this case did not require it to take action to advise appellant about his potential for being impeached with his prior convictions or to direct counsel to re-advise appellant about her client's risk of impeachment. We reach that conclusion assuming, but not deciding, that appellant's counsel's advice was not a legally correct admonition to appellant about his risk of being impeached with his prior convictions.

(i)

The Fifth, Sixth, and Fourteenth Amendments to the United States Constitution guarantee the accused in a criminal case the right to testify on his own behalf. Rock v. Arkansas, 483 U.S. 44, 51-53, 107 S.Ct. 2704, 2708-10, 97 L.Ed.2d 37 (1987). As the right to testify is personal to the defendant, it may only be waived by him, and not by his counsel for him. Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312, 77 L.Ed.2d 987 (1983). Moreover, because the right to testify is " 'essential to due...