Petition — Miller v. Maryland

Supreme Court, YJ. .

‘Dp ‘

ae

1977

IN THE

Supreme Court of the Un cer

OCTOBER TERM, 1976

NO. MISC.

ALBERT MILLER, JR..,

Petitioner,

STATE OF MARYLAND,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF SPECIAL APPEALS

OF MARYLAND

HOWARD L. CARDIN

JAMES J. GITOMER

233 Equitable Building

Baltimore, Maryland 21202

Attorneys for Petitioner.

. ,

The Paul M. Harrod Company, Baltimore, Maryland 21234

INDEX

TABLE OF CONTENTS

Page

DECISIONS BELOW ............4.- sees ea eeae * 2

PES SRc cdo ccacecccencesnrerensesss 2

STATEMENT OF THE CASE ..... a csisceensescaas 2

SE GY EU ccc coca dbeeeu see sees en 2

Se NEE Sop ccvcwcccvscceccecesa 3

REASON FOR ALLOWANCE OF WRIT:--

A guilty plea in violation of the dictates of Boykin

v. Alabama, 395 U.S. 238 cannot be valid if the

criminal defendant is not advised and does not

waive his privilege against self-incrimination .......

GREE SoS be ewer ewecdecceescuceesosees

APPENDIX A:

tt Ce «ceoseeeececss eserves

APPENDIX B:

eee ee ee

APPENDIX C:

Testimony before Hon. Solomon Liss,

Judge in the Cnminal Court of

ED eT Cre ee

ii

TABLE OF CITATIONS

Cases Page

Boykin v. Alabama, 395 U.S. 238 (1969) ......... 3,4,5,6

Davis v. State, 278 Md. 103 (1976) ............... 3,4

Henderson v. Morgan, 432 U.S. 821 (1976) ............ 5

Johnson v. Zerbest, 304 U.S. 458 (1938) ............. 5

McCall v. State, 9 Md. App. 191, (1970).............. 4

McCarthy v. State, 394 U.S. 459 (1969) ............ 4,5

Miller v. State, 32 Md. App. 482 (1976) .............. 2

IN THE .

Supreme Court of the United States

OCTOBER TERM, 1976

NO. MISC.

ALBERT MILLER, JR.,

Petitioner,

STATE OF MARYLAND,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF SPECIAL APPEALS

OF MARYLAND

Petitioner moves this Court to issue a Writ of Certiorari

to review the Judgement and Opinion entered on August 30,

1976, by the Court of Special Appeals of Maryland.

DECISIONS BELOW

The Judgement and Opinion of the Court of Special

Appeals of Maryland is presently reported in Miller v. State,

32 Md. App. 482 (1976) and a copy of that Judgement and

Opinion is attached hereto. The Petitioner petitioned the

Court of Appeals of Maryland for a Writ of Certiorari and

said petition was denied on October 26, 1976. A copy of said

denial is attached hereto.

JURISDICTION

Jurisdiction is involved under 28 U.S.C. §1257(3) and

the Fourteenth Amendment to the Constitution of the United

States.

STATEMENT OF THE CASE

This is an Appeal from a denial of Post Conviction Relief

from first the Criminal Court of Baltimore City, then the

Court of Special Appeals of Maryland and finally the Court of

Appeals of Maryland.

STATEMENT OF FACTS

The Petitioner, Albert Miller, Jr., was indicted in 1969

under Indictment Nos. 6288/69 and 6289/69, charging him

respectively with murder and robbery with a dangerous and

deadly weapon. On June 2, 1970 the Petitioner pled guilty to

the charge of murder in the first degree under Indictment No.

6288/69 and was sentenced to a term of life imprisonment.

Pursuant to plea negotiations the State then Nolle Prosequied

Indictment No. 6289/69.

3

Thereafter, the Petitioner took no direct appeal and filed

his first Post Conviction Petition October 23, 1975.

QUESTION PRESENTED

Whether a guilty plea is valid under the dictates of

Boykin v. Alabama, 395 U.S. 238 (1969) if no reference is

made to a _ criminal defendant’s privilege against

self-incrimination and an adequate waiver obtained thereto.

REASON VOR ALLOWANCE OF THE WRIT

A GUILTY PLEA IN VIOLATION OF THE

DICTATES OF BOYKIN V. ALABAMA, 395 U.S.

238 CANNOT BE VALID IF THE CRIMINAL

DEFENDANT IS NOT ADVISED AND DOES NOT

WAIVE HIS PRIVILEGE AGAINST

SELF—INCRIMINATION.

It is clear from the transcript of June 2, 1970 that the

Petitioner was never advised nor did he waive his privilege

against self-incrimination. (A. 10-24)

The Court of Special Appeals of Maryland grounded

their affirmance of Petitioner’s case on the recent holding in

Davis v. State, 278 Md. 103 (1976). In Davis, supra, the

majority found that there was no need for a tris’ judge to

perform a ritualistic litany but only that he be assured a

criminal defendant was pleading guilty freely and voluntarily

with a full understanding of his rights. Also they found that

there need not be an individual reference to a waiver of the

privilege against compulsory self-incrimination.

4

The concurring Opinion of Chief Judge Murphy in Davis,

supra is helpful in showing the new ground broken by the

Court of Appeals of Maryland as a result of Davis, supra.

\

“Shortly after Boykin was decided, the Court

of Special Appeals interpreted that decision as

making clear ‘that if the record does not

affirmatively show that a defendant had. an

intelligent understanding that he possessed each of

these specific rights and voluntarily waived them,

the acceptance of a plea of guilty would not be

, effective in any event.’ McCall v. State, 9 Md. App.

" 191, 199, 263 A.2d 19 (1970), cert. denied, 258

Md. 729 (1970). (Other cites omitted) The trial

courts of the State, adhering to these decisions,

have long required a_ specific, on-the-record

reference to, and waiver of, the three constitutional

rights outlined in Boykin.” Davis, supra.

In 1969 this Court decided two cases’ with

reference to the trial judge’s acceptance of a guilty plea. In

McCarthy v. United States, 394 U.S. 459 (1969), the Court

held that Rule 11 of the Federal Rules of Criminal Procedure

required that a confession of guilt be set aside because the

district judge accepted the guilty plea without addressing the

defendant personally to determine whether he understood the

nature of the charge and without ascertaining that there was a

factual basis for the plea. In the course of so holding, Chief

Justice Warren, for the Court, noted that:

“A defendant who enters [a guilty plea]

simultaneously waives several constitutional rights,

including his_ privilege against compulsory

self-incrimination, his right to trial by jury, and his

right to confront his accusers. For this waiver to be

valid under the Due Process Clause, it must be ‘an

I

5

intentional relinquishment or abandonment of a

known right or privilege.’ Johnson v. Zerbst, 304

U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 |

(1938). Consequently, if a defendant’s guilty plea is ,

not equally voluntary and knowing, it has been

‘obtained in violation of ‘due process and is therefore

void. Moreover, because a guilty plea is an

admission of all the elements of a formal criminal

charge, it cannot be truly voluntary unless the

defendant possesses an understanding of the jaw in

relation to the facts.” McCarthy v. United States,

supra. (footnotes omitted).

Two months later, in Boykin, supra, this Court addressed

the question of what minimum requirements were imposed by

the due process clause of the Fourteenth Amendment with

reference to the acceptance of guilty pleas in state courts.

Justice Douglas opined as follows:

“Several federal constitutional rights are

involved in a waiver that takes place when a plea of

guilty is entered in a state criminal trial. First, is the

privilege against compulsory _ self-incrimination

guaranteed by the Fifth Amendment and applicable

to the States by reason of the Fourteenth. Second,

is the right by trial by jury. Third, is the right to

confront one’s accusers. We cannot presume a

waiver of these three important federal rights from

a silent record.” Boykin, supra.

This Court has just recently examined a state guilty plea

and reasoned that it was invalid since a critical element of the

crime was not explained. Henderson v. Morgan, 423 U.S. 821

(1976).

6

Implicit in the aforementioned cases is that this Court

has mandated an affirmative showing on the record of the

explanation and waiver of the three constitutional rights. The

decision in the Petitioner’s case goes beyond the scope of this

Court’s decisions and allows a regression to the days of the

silent and meaningless trial record with reference to guilty

pleas. | |

It is a dangerous and unnecessary departure from the

established practice to allow the Court of Appeals of

Maryland to hold, absent a clear mandate from this Court,

that Boykin, supra, does not mean what it so plainly says;

and that the substance of the so-called Boykin, supra

constitutional rights need not be given preliminasily prior to

the acceptance of a guilty plea and anon the record waiver

obtained of these rights.

CONCLUSION

For the reasons heretofore cited and in reliance upon the

legal authorities hereinabove set forth, it is respectfully

submitted that a Writ of Certiorari to the Court of Special

Appeals of Maryland be issued herein.

Respectfully submitted,

HOWARD L. CARDIN

JAMES J. GITOMER

Attorneys for Petitioner.

A. 1

APPENDIX A.

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND |

NO. 1330

SEPTEMBER TERM, 1975

ALBERT MILLER, JR.

7 v.

STATE OF MARYLAND

‘Singley, Smith, Ross (all specially assigned)

OPINION BY SINGLEY, J.

(Filed July 30, 1976)

“The appellant, Albert Miller, Jr., pleaded guilty to first

degree murder in the Criminal Court of Baltimore (Liss, J.) on

2 June 1970 and was sentenced to life imprisonment. As a

result of Miller’s plea, the State nol prossed a robbery

indictment and agreed to recommend life imprisonment, thus

allowing Miller to avoid any possibility of the death penalty.

Miller did not appeal.

On 23 October 1975, Miller filed a Petition for Relief

under the Uniform Post Conviction Procedure Act, Maryland

Code (1957, 1976 Repl. Vol.) Art. 27, § 645A, in which he

alleged that:

“ [he] was denied effective assistance of counsel

in that a plea of guilty was entered as to first

degree murder without the petitioner being advised

of his privilege against self-incrimination.”

A. 2

This fact, the petition alleged, rendered the guilty plea void

under the mandate of Boykin v. Alabama, 395 U.S. 238

(1969), 2s interpreted by English v. State, 16 Md. App. 439,

298 A.2d 464 (1973), cert. granted, 268 Md. 748, dismissed

as improvidently granted, 3 July 1973, and Davis v. State, 28

Md. App. 50, 343 A.2d 550, cert. granted, Md.

(1975), aff'd, Md. (#114, September Term, 1975,

decided July , 1976).

A hearing was held on the petition in the Criminal Court

of Baltimore (Sklar, J.); at which time argument by counsel

for Miller was heard, but Miller was not interrogated. The

State strenuously maintained that Miller had effectively

waived any right to raise the Boykin question, see Code

(1957,~1976 Repl. Vol.) Art. 27, §645A(c); Maryland Rule

BK48(a). The relief sought was denied on both grounds

presented: first, that Miller had waived the point, and, that

even if there had been no waiver, Miller’s guilty plea had been

freely and voluntarily given. We granted leave to appeal, Rule

BK46, and transferred the case to our regular appeal docket.

Miller has presented two questions for our consideration:

“1. Did not the Trial Court err in denying

Appellant’s Petition for Post Conviction Relief when

it determined that Appellant’s guilty plea was valid

under the dictates of Boykin v. Alabama?

“2. Did not the Trial Court err in determining

that the Appellant effectively waived his right to

complain about the infirmity of his guilty plea?”

We are convinced that the question whether Boykin v.

Alabama, supra, mandates the granting of the relief sought by

Miller has been recently answered by the Court of Appeals in

A. 3

Davis v. Staie, supra, (#114, Septemier ‘Term, 1975, decided

July ' $976). Miller primarily relies upon the earlier

opinion in Davis written by the Court of Special Appeals, 28

Md. App. 50, 343 A.2d 550 (1975) and upon English yv.

State, supra.

The interpretation. given to Boykin by this Court in

Davis and English, both supra, as well as in Williams ¥. State,

10 Md.. App. 570, 271 A.2d 777 (1970), cert. denied, 261

Md, 730 (1971); McCall v. State, 9 Md. App. 191, 263 A.2d

19, cert. denied, 258 Md. 729 (1970) and Silverberg v.

Warden, 7 Md. App. 657, 256 A.2d 821 (1969) was

essentially that:

“the due process clause of the Fourteenth

Amendment requires state trial judges to specifically

inform defendants of the essential elements of their

privilege against ‘compulsory self-incrimination

before accepting their guilty pleas...” Davis y.

State, supra, Md.at (slip op. at 4).

In other words, unless the trial court performed a ritualistic

litany in which the accused was told of his Constitutional

rights, including those derived from the Fifth Amendment,

Boykin would be violated. Judge Digges, for the Court of

Appeals in Davis, after a scholarly review of the Supreme

Court cases and the interpretation. given Boykin in other

jurisdictions, determined that our interpretation of Boykin

was overly restrictive and that the proper interpretation

should be:

“ ..that Boykin does not stand for the

proposition that the due process clause requires

state trial courts to specifically enumerate certain

rights, or go through any particular litany, before

accepting a defendant’s guilty plea; rather, we think

A. 4

Boykin, merely holds that the record must

affirmatively disclose that the accused entered his

confession of guilt voluntarily and understandingly.”’

Davis v. State, supra, Md. (slip op. at 12).

(emphasis supplied).'

What the Constitution directs us to do in the instant

case, therefore, is to determine whether Miller, under the

totality of the circumstances, “entered his confession of guilt

voluntarily and and understandingly.” This does not, however,

require us to review the record of the hearing where Miller’s

plea was entered in order to determine if the trial court

employed any particulary prophylactic procedure before

accepting the guilty plea.?

The record reveals that Miller took the witness stand

during the hearing at which he pleaded guilty and was

interrogated in painstaking detail by his counsel. We shall

extract. from the transcript illustrative portions of that

colloquy which we believe conclusively demonstrate that

Miller was fully aware of the consequences of his plea of

guilty. Preliminarily, we note that Miller had an unusually

: In Boykin, the record of the petitioner’s hearing where

he pleaded guilty was “wholly silent,” 395 U.S. at 240, thus

making it “error, plain on the face of the record, for the trial

judge to accept petitioner’s guilty plea without an affirmative

showing that it was intelligent and voluntary.” 395 U.S. at

242. The situation is vastly different when the record

discloses that the accused either was informed in open court

or was already aware of the consequences of his decision to

plead guilty.

2

It is noteworthy that the view taken by the Court of

Appeals in Davis is shared by the federal courts, including the

Fourth Circuit, see, e.g., Wade v. Coiner, 468 F.2d 1059 (4th

Cir. 1972); United States v. Frontero, 452 F.2d 406 (Sth Cir.

1971).

A. 5

thorough understanding of the felony-murder doctrine, under

which he had been indicted because the murder had occurred

in the course of an armed robbery. This is evidenced by the

following:

-“Q. [by Miller’s counsel] Now give the Court your

understanding of what first degree murder is when

you kill someone in the course of a robbery.

“A. [by Miller] First degree murder in the course

of a robbery is when you go into the place with an

intent to rob, and while the robbery is being

committed, a murder is committed also at the same

time.

“Q. Now, is that what happened in this case.

“A. Yes, it is.”

There can be, therefore, no doubt that Miller understood the

essential elements of the felony-murder doctrine and fully and

voluntarily admitted that he entered a store with the

intention of committing a robbery and that the victim was

murdered in the, course of that robbery. This satisfies the

recent holding of the Supreme Court in Henderson v. Morgan,

44 U.S.L.W. 4910 (June 15, 1976), that a defendant who

pleads guilty must be aware of the essential elements of the

crime to which he pleads guilty.

The colloquy continued:

“Q. All right. Now, you understand that when you

plead guilty, that you are going to give up your

right to a trial by jury, you understand that?

A. 6

“A. Yes, I do.

“A. My [Miller’s] understanding of a jury trial is

that a jury trial is twelve people selected from the

community of the Baltimore City area... and, in

accepting the facts, they bring about a verdict...

whether the defendant is guilty or not guilty, either

all the people say that I am, that the person is

guilty, or he is not guilty by all the people.

“Q. Now, do you understand that you have an

absolute right to this jury trial?

“A. Yes, I do.

“Q. Now, do you further understand that when you

plead guilty, you are going to give up your rights to

confront and to cross examine witnesses ..., your

rights to have the state call witnesses... to testify

on behalf of the state, to bring evidence against you

— do you understand that you are giving that up?

“A. Yes, | do understand that.

“Q. Now, do you further understand, and did |

explain to you that when you plead guilty, you

must do this voluntarily; in other words, nobody

can thake you plead guilty, do you understand that?

“A. Yes, I do.

A.7

p82 abs ; eee e888

“Q. That you are intelligently giving it [the

plea] ... because, you know, and you are in fact,

' guilty of murder in the first degree, because you

‘did; in fact, participate in this robbery, and a man

- was killed as a‘result of that participation —

“A. Right.

“Q. — is it correct?

“A. Yes, it is.

“Q. And no one has threatened you to give the

plea?

**A. No, one at all.”

Miller also indicated that he thoroughly understood the

nature of his plea bargain, that the State would recommend

life imprisonment and would nol pros the robbery indictment,

that he understood that he was waiving his right to appeal

from his conviction otier than on jurisdictional grounds or on

the ground that the plea was involuntarily given.

This record was obviously the product of commendable

effort and thorough preparation by Miller’s counsel, Gerald

Kroop, who had interviewed and advised his client at length.

The inescapable conclusion, therefore, is that Miller knew

precisely the consequences of his plea of guilty and did so

voluntarily and freely with full knowledge of the

constitutional rights which he thereby waived. While the

references to the _ privilege against compulsory

self-incrimination were, in the words of the trial judge, at best

“crude,” there is simply no longer, under Davis v. State,

supra, Md. (slip op. at 12), any necessity that a

A. 8

ritualistic litany be performed as long as the accused

comprehends the nature of his decision to plead guilty and

does so of.a free will.’

Under the view that we take of this case, it becomes

unnecessary for us to consider the question of Miller’s waiver

of the right to raise the-question in a post conviction

proceeding.

JUDGMENT AFFIRMED;

RELIEF DENIED. |

APPELLANT TO PAY COSTS

> In his brief, Miller states that he was not advised of his

privilege against self-incrimination during the course of the

hearing where his plea was accepted by the trial court. While

* we agree that the record fails to indicate any precise reference

to the privilege against self-incrimination, it is inconceivable to

us that Miller had..not been told of the privilege by his

counsel prior to the hearing since it is abundantly apparent

_that Miller had been thoroughly schooled by Mr. Kroop, see

Stevens v. State, 232 Md. 33, 192 A.2d 73 (1963); State v.

McKenzie, 17 Md. App. 563, 303 A.2d 406 (1973). The

burden was upon Miller to present evidence that he was

unaware of his Fifth Amendment privilege, Maryland Rule BK

48(b). This failure to do so leads us to assume that no such

circumstance existed. In any event, we need not concern

ourselves with this problem, for we are convinced that the

record overwhelmingly reveals the voluntary and knowing

nature of Miller’s plea.

A. 9

APPENDIX B

COURT OF APPEALS

OF MARYLAND

NO. 1330

SEPTEMBER TERM, 1975

PER CURIAM

ORDER

Upon consideration of the petition for a writ of

certiorari to the Court of Special Appeals in the above

entitled case, it is

ORDERED, by the Court of Appeals of Maryland, that

the said petition be, and it is hereby, denied as there has been

no showing that review by certiorari is desirable and in the

public interest.

Judges Singley and Smith did not participate in the

consideration of this petition.

/s/ Robert C. Murphy

Chief Judge

Date: October 26, 1976

Before the Honorable Solomon Liss, Judge

In the Criminal Court of Baltimore

June 2, 1970

STATE OF MARYLAND,

Plaintiff,

v.

ALBERT MILLER,

Defendant

Indictment 628

(T. 2) PROCEEDINGS

, (The Clerk) Albert Miller, under Indictment 628, the

State of Maryland charges you with murder. At the time of

your arraignment, a plea of not guilty was entered for you.

Your plea today?

(Mr. Kroop) Your Honor, if it please the Court, the plea

to Indictment 628 would be guilty to murder in the first

degree, and if it please the Court, | would like to put the

defendant on the witness stand and question him as to this.

(The Court) All right.

(Mr. Kroop) Albert, go up there, please.

ee ee ee

A. I]

TESTIMONY

ALBERT JAMES MILLER

called as a witness on behalf of himself, having been first duly

sworn aceording to law, was examined and testified as

follows:

By the Clerk: |

Q. State your name and address, please. A. Albert James

Miller, Jr., 1715 West Fayette Street.

DIRECT EXAMINATION

By Mr. Kroop:

(T. 3) Q. All right. Now, Albert, tell the Court, Judge

Liss, how old are you? A. I am eighteen years old.

Q. Where were you born, Albert? A. Where was | born?

Q. Yes. A. University Hospital in Baltimore.

Q. In Baltimore City? A. Yes.

Q. Now, how far did you go in school? A. I went to the

beginning of the ninth grade.

Q. And at this present time, can you read and write? A.

Yes, I can read and write.

Q. Now, you and I have discussed this case, is that

correct? A. Yes, we have.

A. 12

Q. We have discussed this case approximately three or

four, maybe five times, while you were in the City Jail, is

that correct? A. Yes, it is.

(T. 4) We also discussed the case just about fifteen or

twenty minutes right before your going on the witness stand,

now, isn’t that correct? A. Right.

Q. Now, you understand what you are charged with —

you are charged with murdering a man by the name of

Ronald Chelwicki, and that happened on August 15th of

1969, do you understand that? A. Yes, I do.

Q. Now, you have pleaded guilty to murdering him in

the first degree. Now, you plead guilty because you are, in

fact, guilty of murdering him in the first degree? A. Yes, I

did.

Q. Now, did I explain to you, Albert, what it is when

you murder someone, or when you kill someone in the course

of a robbery? A. Yes, you did.

Q. Now, give the Court your understanding of what first

degree murder is when you kill someone in the course of a

robbery. (T. 5) A. First degree murder in the course of a

robbery is when you go into the place with an intent to rob,

and while the robbery is being committed, a murder is

committed also at the same time.

Q. Right. And you understand that that is called felony

murder? A. Yes, I do.

Q. And that if you are convicted of that, of course, you

plead guilty to that — that it is, in fact, murder in the first

degree? A. Right.

A. 13

Q. Now, is that what happened in this case? A. Yes, it is.

Q. Did you go in and not only intend to rob Mr.

Chelwicki, but, in fact, did you rob him? A. Yes, I did.

Q. And in the course of robbing him, was he shot? A.

Yes, he was.

- Q. And was he shot by a man, who, other than yourself,

was also there to rob him? (T. 6) A. Yes, he was.

Q. As a result of him being shot, of course, you know he

died? A. Yes.

Q. You understand that? A. Yes, I do.

Q. Then, you: understand it when you plead guilty to

murder in the first degree, you are pleading guilty to the fact

that you did, in fact, go into rob him, is that correct? A. Yes,

it is. ~ oo

Q. And that you did rob him? A. Yes.

Q. How did you rob him? What did you do? A. Weil, I

took the money out of his pocket after he was shot dead.

Q. After he was shot? A. Yes.

Q. And the man that shot him, did you go in with that

man? A. Yes, I did.

(T. 7) Q. Was it your intention along with that man to

rob Mr. Chelwicki— A. Yes, it was.

Q. — is that correct? A. Yes, it is.

A. 14

Q. All right. Now, you understand that when you plead

guilty, that you are going to give up your right to a trial by

jury, you understand that? A. Yes, | do. ;

Q. Now, this is the jury box. Explain to Judge Liss what

your understanding of a jury trial is. A. My understanding of

a jury trial is that a jury trial is twelve people selected from

_ the community of the Baltimore City area. These twelve

~~ accept the facts that are brought before them by the

rt—

| Q. Continue. A. — and, in accepting the fa , bring

about a verdict— ’ ssenatien

Q. That’s right. A. — whether the defendant is guilty or

_ not guilty, either all the people say that I am, that the (T. 8)

Person is guilty, or he is not guilty by all the people.

Q. So then you understand that a jury as you said is

selected from community of twelve persons who have to all

agree in accepting the facts presented to them that you are

either guilty or not guilty? A. Yes.

Q. Now, you understand that you have an absolute right

to this jury trial? A. Yes, I do.

Q. Understanding that nobody and no one and no power

on earth can tell you not to take a jury? A. Yes, I do.

ve Q. Do you understand that by pleading guilty, you are

giving up this right to this jury trial? A. Yes, I understand.

: Q. Now, do you further understand that when you plead

guilty, you are going to give up your rights to confront and

to cross examine witnesses, and by that I mean, you are

giving up your rights to have the State call witnesses to sit in

“ALTS

the witness stand where you are now, and to testify on behalf

of the State, to bring (T. 9) evidence against you — do you

understanding you are giving that up? A. Yes, I do understand

that.

* Q. Now, do you further understand, and did | expiain to

you that when you plead guilty, you must do this voluntarily,

in other words, nobody can make you plead guilty, do you

understand that? A. Yes, I do.

Q. Now, has anyone promised you anything at all to

make you plead guilty? A. I don’t understand.

Q. Have any promises been made to you — has anyone

promised you anything? A. (nodded head affirmatively.)

Q. Now, tell the Court what promises have been made to

you. A. The only promise that have been made to me is that

I will get life imprisonment.

Q. Instead of what? A. A possibility of life and twenty,

or death penalty plus twenty years.

(T. 10) Q. That’s right. Now, you understand that the

twenty years can come from what charge? A. The twenty

years can come from the indictment of the robbery with a

deadly weapon.

Q. That’s right. And you understand that the State wiil

drop — that is to say, they will nol pros or drop the case of

robbery with a dangerous and deadly weapon against you? A.

Yes, I do.

Q. Now, do you also understand that by pleading guilty,

that you would receive — there can be no leniency in the sake

that you would receive a sentence of life imprisonment — do

you understand that? A. Yes, I do.

A. 16

Q. You understand that if you plead guilty, and this

guilty plea is freely given by yourself and voluntarily given,

that Judge Liss has nothing else to do but to sentence you,

do you understand that? A. Yes, I do understand that.

Q. Do you know that his sentence, that he has no choice

but to give you life imprisonment, do you (T. 11) understand

that? A. Yes, I do.

Q. Do you understand that you will, if the plea is

accepted, receive life imprisonment? A. Right.

Q. Do you understand that? A. Yes, I do.

Q. Now, did I explain to you that in a criminal case, you

have a right to an appeal, do you understand that? A. Yes.

Q. Did I further explain to you that if this plea is freely

and voluntarily given, and is given knowingly — that is to say,

you were doing it intelligently, you know what you are doing

— that you waive your rights to an appeal except for two

grounds, and those two grounds are as follows: That this

Court, in order for you to get a reversal of this conviction,

you would have to show that this Court did not have

jurisdiction — that is to say, the power or the authority to try

you. Did I explain that to you? (T. 12) A. Yes, you did.

Q. Do you understand that I explained that since this

crime was committed in Baltimore City, is that correct — A.

Right.

Q. — and that since this is the Criminal Court of

Baltimore City, that this Court, in fact, does have the

jurisdiction, the power, the authority to try you— A. Right.

Q. — you understand that? A. Yes, I do understand that.

A. 17

Q. So, therefore, even though you could appeal on that

ground, since we already know that the Court does have

jurisdiction, this would make the appeal useless on that

ground —” A. Right.

-Q. — you-understand that? A. Right.

Q. Do you understand further that the other thing that

you could appeal for to the Court of Appeals is (T. 13) that

your plea that you are giving right now was not freely given,

was not intelligently given and was not voluntarily given, and

do you understand that you have just told this Court that

you are freely giving it, is that correct? A. Yes, it is.

Q. That you are intelligently giving it — that is to say,

the reason you are giving it, because you know, and you are,

in fact, guilty of murder in the first degree, because you did,

in fact, participate in this robbery, and a man was killed as a

result of that participation— A. Right.

Q. —is that correct? A. Yes, it is.

Q. And no one has threatened you to give the plea? A.

No one at all.

Q. Now, are there any questions that you have of me or

Judge Liss — A. No, there isn’t.

(T. 13) Q. — concerning your plea at this time? A. No, it

is not.

Q. Now, I want you also to realize that in the courtroom

today are the witnesses called by the State that would testify

against you in your case. Now, one other thing | want to ask

you: You gave a confession in this case, is that correct? A.

Right.

A. 18

Q. And I explained to-you that the confession may not

be valid — that is to say, it may not be able to be used

against you, you understand that? A. Yes, I do.

Q. And still knowing this, that the confession may not

Se Oe ie CIEE San, Pa Aen aD OE to plead

guilty? A. Yes, | am. “o

Q. Is that correct? And I also explained to you that —

strike that — in other words, the fact that you gave a

confession in no way is causing or forcing you to plead

guilty — A. No, it is not. :

(T. 15) Q. — is that correct? Because like I explained,

that confession may not be able to be used— A. Right.

Q. — you understand that? A. Yes, I do.

Q. Very well. Do you have questions, now, Albert, about

this plea? A. No, I don’t have any questions whatsoever.

Q. All right.

(Mr. Kroop) Now, Your Honor, does the Court have any

questions relative to this plea?

(The Court) No. Mr. Miller, you have indicated to me

-that you fully understand the proceedings, that you

understand the rights which you have in this case, that you _

have waived these rights, and that you voluntarily wish to

plead guilty in return for the assurafice by the State that it

will ask for life imprisonment in this case, and will dispose of

the robbery charge against you without any additional

punishment, is that correct?

A. 19

(The Witness) Yes, it is.

(T. 16) (The Court) And you want the Court to accept

this guilty plea under those circumstances?

(The Witness) Yes, sir.

(The Court) All right.

(Mr. Kroop) Your Honor, for the record, | would also

like to indicate that Mr. Miller and I have discussed this case

at great length, not only today but on several occasions

before today, and I feel as an officer of this Court and as an

attorney that this plea is intelligently and is voluntarily given.

I feel that he fully understands that, what the felony murder

rule is, and he fully understands what his participation was in

this case, and what the State has as witnesses against him.

(The Court) I see. All right. We will accept the plea.

Very well. Step down.

Take a seat.

(Witness excused.)

(Mr. Horwitz) If the Court please, if Rose Chelwicki

were to testify today, she would testify that on the 15th of

August, 1969, she, along with her (T. 17) husband, Gronem,

went to their place of business, their grocery store at 23rd

and Gilford Avenue about 8:00 in the morning. At that time,

in her presence, her husband placed about $1,000.00 in the

cash register and was preparing the store for business.

Shortly thereafter, one Marvin Johnson entered the

premises, purchased a soda. Shortly thereafter, the defendant,

Miller, Albert Miller, and a third person by the name of

A. 20

Emmess Newkirk entered the premises. Mr. Newkirk went by

the grocery stand, took out some carrots and at the same

time displayed a .22 caliber revolver at which time he said,

this is a holdup, and shot Mr. Chelwicki.

Mr. Miller, at that point, reached over, took the wallet

from Mr. Chelwicki’s body. Then, the defendants, Miller and

Johnson, asked Mrs. Chelwicki to open the cash register in

order for them to remove the money.

At that point, Miller and Johnson fled the premises.

If the State were to call Catherine Flemming (T. 18) and

Renee Brown, they would testify that they saw the

defendant, Miller, running from the premises, 23rd and

Gilford, shortly after 8:00 carrying money.

The State would further at this point, introduce in

evidence as State’s Exhibit 1, a .22 caliber revolver, and the

bullet removed from the victim’s body, .22 caliber bullet.

Also, the report to the crime lab which states that the

bullet was, in fact, fired from a .22 caliber gun, the bullet

recovered from the body, and this is the report which we

would offer as State’s Exhibit 2.

(The Court) From whom was the revolver recovered?

(Mr. Horwitz) The revolver was recovered from the

defendant, Johnson’s home.

(The Court) All right.

(Mr. Horwitz) The defendant was advised of his rights by

Sergeant DePaula, of the Homicide Squad on August 16,

1969, at 9:08 a.m.

— ee

A.21

At that time, he signed a police form 67/69, Explanation

of Rights, witnessed by Detective (T. 19) Phillip Smith,

whereby he waived his rights under the Miranda vs. Arizona

decision.

The State would introduce this State’s Exhibit 3, the

Waiver of Rights, and the State should introduce as Exhibit 4,

a statement by Albert James Miller, Jr., consisting of five

pages in which he, in detail, sets forth his participation in this

offense.

The State would also introduce as Exhibit 5, the report

to the medical examiner’s office as to Gronem Chelwicki.

(The Court) That is the autopsy report?

(Mr. Horwitz) That is the autopsy report, Your Honor.

(The Court) Alt right.

(Mr. Horwitz) Mrs. Chelwicki will identify the defendant

as the one who removed the wallet from her husband and

who participated in the robbery. Mrs. Chelwicki is in Court,

and two girls, Renee Brown and Catherine Flemming were

here earlier and will be back later. They stepped out for

something right now.

The State would also proffer that if James (T. 20) Norris

would testify if, James Norris, who is in Court today _

James, stand up, please — he would testify that he was with

robbery, and heard these persons plan in detail

He also spoke to — well, that, in essence, would be the

testimony of Mr. Norris, and that, in essence, would be the

State’s case.

(The Court) All right. Anything else, Mr. Kroop.

(Mr. Kroop) No, Your Honor. I would just say this, that

in some substance, the defense would agree with the proffer

of evidence that the State would present to this Court. We

await your disposition, Your Honor. Stand up.

(The Court) All right. Of course, the disposition is

obvious, but, in the meantime, Mr. Miller, you are eighteen

years old?

(T. 21) (The Witness) Yes, sir.

(The Court) You went, you said, to the ninth grade?

(The Witness) Sir?

(The Court) Ninth grade? You went to the ninth grade?

(The Witness) I started in the ninth grade.

(The Court) You started in the ninth grade. Are you

married or single?

(The Witness) Single.

A. 23

(The Court) Have you been taking narcotics prior to this

incident?

(The Witness) A few times.

(The Court) A few times?

(The Witness) Yes, sir.

(The Court) Were you or any of the others who were

involved in this under the influence of narcotics at the time

that this occurred?

(The Witness) I was a little high, but I wasn’t you know,

under the influence of any narcotics.

(T. 22) (The Court) What had you taken?

(The Witness) I was drinking.

(The Court) You were drinking?

(The Witness) Yes, sir.

(The Court) What about the other men, had they taken

any narcotics?

(The Witness) No, sir.

(The Court) All right. You are guilty of murder in the

first degree. The sentence is life imprisonment.

(Mr. Kroop) May that date from the date of the arrest,

Your Honor?

A. 24

(The Court) From August the 16th, 1969.

Now, the other case, is it going to be disposed of, Mr.

Horwitz?

(Mr. Horwitz) Your Honor, the other case against Mr.

Johnson will be tried by a jury in Part 6 this afternoon.

(The Court) No, no — I’m talking about the robbery

case.

(Mr. Horwitz) Yes, the State would move to (T. 23)

stet —

(The Court) Wait a minute — wait just one minute.

(Mr. Horwitz) The State would move to stet indictment—

(Mr. Kroop) The State will nol pros —

(Mr. Horwitz) All right. The State will nol pros

Indictment 6289, which is the burglary indictment.

(The Court) You mean the robbery indictment?

(Mr. Horwitz) The robbery indictment, I will submit to

this Court a written nol pros as soon as possible.

(The Court) All right.

(Whereupon, the trial in the above case was concl ded.)