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Court of Appeals: Admissions can be used in trial de novo

A defendant’s admissions during Maryland District Court proceedings were admissible evidence in his trial de novo in circuit court, the state’s highest court said.

Using the recorded testimony did not violate the defendant’s Fifth Amendment right against self-incrimination, the Court of Appeals held.

“This is a chink in the idea that a defendant has the right to start all over again,” said Binny Miller, director of the Criminal Justice Clinic at the American University Washington College of Law. Miller represented the petitioner, Robert Oku, before the Court of Appeals

While state law provides that certain District Court convictions can be appealed by way of a new trial in circuit court, the Court of Appeals held that the de novo system does not mandate the exclusion of otherwise admissible testimony from the District Court hearing during the circuit court trial.

“We applaud the court’s common-sense decision,” said Brian Kleinbord, chief of the Criminal Appeals Division in the Office of the Maryland Attorney General. “The defendant took the stand in District Court and confessed to the crime. There is no reason the state should be prohibited from introducing his own confession in the second trial. A contrary result would have excluded reliable evidence without any basis in law or policy.”

The case stems from Oku’s conviction on second-degree assault charges, originally tried in Maryland District Court in Montgomery County.

Prosecutors said Oku attacked another man in the elevator of a Silver Spring apartment building, punching him in the left side of the face and knocking him to the ground. Oku was charged with second-degree assault and reckless endangerment.

During the District Court trial, the man who was beaten identified Oku as his attacker. Oku took the stand and admitted to punching the man.

Oku was convicted of both charges, but appealed, seeking a de novo trial in Montgomery County Circuit Court. Oku waived his right to a jury and sought to have his District Court testimony excluded from the circuit court proceedings.

The judge denied the motion, concluding that a de novo trial does not require the court to ignore previous testimony.

When the state moved to introduce a recording of the testimony during the case, Oku objected, saying his Fifth Amendment privilege against self-incrimination was being violated. The judge overruled the objection.

The judge acquitted Oku of reckless endangerment, but found him guilty of second-degree assault.

In his appeal, Oku argued any admission made by a defendant in District Court should cease to exist for the circuit court trial.

“Our de novo trial system provides for what is essentially a “do-over” in terms of the findings of fact and judgment of guilt,” Chief Judge Mary Ellen Barbera wrote for the court. “Contrary to [Oku’s] view of it, this statutory scheme does not call for the exclusion of testimony voluntarily given in the District Court trial, as long as that testimony is admissible under our rules of evidence.”

Oku’s situation at the trial de novo was “no different…than that of a defendant who faces retrial after reversal of the prior conviction on appeal,” Barbera wrote.

Friday’s decision “will have an impact on whether people charged with crimes will testify in District Court cases, knowing testimony can then be used against them,” said Miller. “I think the de novo system is one that has some disadvantage for defendants, though I’m not sure it’s communally perceived that way.”

She also said it may change the equation for defense counsel, who must “see two systems and integrally connect [them] to one another.”

In the past, a lawyer could simply decide whether the client’s testimony would be helpful in the District Court proceeding, she said; now, though, the lawyer “would have to weigh the value of clients’ testimony in District Court against the fact that it could be used against them in circuit court.”

BARBERA

WHAT THE COURT HELD

Case:

Robert Oku v. State of Maryland, No. 59, September Term 2012, Argued April 9, 2013. Decided August 16, 2013. Opinion by Barbera, C.J.

Issue:

Is a defendant’s self-incriminating testimony in District Court admissible when he appeals the conviction in a de novo trial in circuit court?

Holding:

Yes, affirmed. The de novo system does not exclude testimony, otherwise admissible, that was voluntarily given in the district court trial; rather, the situation is ‘no different…than that of a defendant who faces retrial after reversal of the prior conviction on appeal.’

Counsel:

Binny Miller, director of the Criminal Justice Clinic at the American University Washington College of Law, for petitioner; Daniel J. Jawor, Office of the Maryland Attorney General, for respondent.

RecordFax 13-0816-21 (19 pages).