Buzbee v. State
Annotate this Case
Download PDF
REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 0170 September Term, 2010 TIMOTHY JOSEPH BUZBEE v. STATE of MARYLAND Woodward, Matriccian i, Thieme, Raymo nd G., Jr. (Retired, Specially Assigned) JJ. Opinion by Thieme, J. Filed: July 7, 2011 On October 15, 2009, a grand jury sitting in the Circuit Co urt for M ontgom ery County returned an indictment in ten counts charging Timothy Joseph Buzbee with one count each of com mon law rape and com mon law robb ery, three counts each of first and second degree rape, and two counts of use of a handgun in the commission of a crime of violence.1 In this interlocutory appeal, appellant Buzbee seeks to reverse the order by the Circuit Court for Montgom ery County denying his motion to dismiss this indictment. Buzbee claims that the instant prosecution, which relates to offenses allegedly committed between 1977 and 1980, violates a plea agreement that Buzbee had concluded with the State in 1984 in an unrelated case. The State respond s, first, that this Court lacks jurisdiction to entertain this a ppeal, inasmuch as appellant seeks our review of an interlocutory order that does not qualify as an appealab le collateral order. In the alternative, the State urges that the prosecution does not violate the ple a agreem ent. We disagree with the State that we lack appellate jurisdiction over this appeal. We agree, however, with the State s claim that the instant prosecutions do not violate the 1984 plea agreement. We shall therefore affirm the order denying Buzbee s motion to dismiss. 1 At the time of th e offense s alleged, an d in addition to the common law offenses, the first and second-degree rapes constituted violations of Md. Code (1957, 1976 Repl. V ol., 1977-1980 Supp.), Art. 27 §§ 36 B(d) (handgun ), 462 (first-degree rape) & 463 (seconddegree rape). B ACKGROUND The 1982 Prosecutions Buzbee was prosecuted in 1982 in connection with a series of rapes that took place in Montgomery County. Although suspected of involvement in 17 or 18 rapes, he was specifically charged with seven rapes that took place between 1980 and 1982. Buzbee was arrested on November 5, 1982. Attorney Reginald W. Bours, III, was contacted by Buzbee s father and was eve ntually retained to represent him. The evening of Buzbee s arrest, Mr. Bours, along with his law partner John Monahan, attended a lineup that was conducted at the State s Attorney s office in Rockville. Mr. Bours recalled that none of the potential w itnesses we re able to iden tify Buzbee. T hree cases did go to trial, resulting in one acquittal and two convictions. Following the first conviction, Buzbee was sentenced to life imprisonment, plus 50 years. The second conviction drew a concurrent life sentence.2 On June 25, 1984, Buzbee entered a plea to first-degree rape in Case No. 29687. He was sentenced to life imprisonment. The State entered a no lle prosequ i to burglary and firstdegree sexual offense, the remaining counts in this indictment, and to the three co unts firstdegree rape, bu rglary and robber y, in a com panion case, N o. 2968 6. The interpretation of the plea agr eement in Case N o. 29687 is at issue in this a ppeal. 2 In Buzbee v . State, 58 Md. A pp. 599 , cert. denied, 300 M d. 794 (19 84), this Court upheld B uzbee s co nvictions fo r the kidnap and rape o f a 15-year-old girl. 2 The Instant Prosecution In its October 15, 2009 indictment, the grand jury charged Buzbee with offenses involving four separate victims that took place from 1977 through 1980. On March 16, 2010, appellant move d to dism iss the in dictme nt, assert ing, inter alia, that the instant prosecution constituted a breach of the plea agreement. 3 A hearing was conducted on March 19, after which the circuit court denie d appellan t s motion to d ismiss. This a ppeal follo wed. W e will recite additional facts as necessary to address the issues before us. D ISCUSSION At issue in this case is whether the circuit court erred by denying Bu zbee s mo tion to dismiss the 2009 in dictment. H e claims that h is plea agree ment with the State in 1984 foreclosed any additional prosecutions. The State responds that we should dism iss Buzbee s interlocutory appeal. In the alternative, the State maintains that the circuit court prop erly denied Buzbee s motion to dismiss. Interlocutory Appeal We must at the outset determine o ur jurisdiction to entertain Buzbee s appeal. The State ins ists that th is appe al is not p roperly be fore us . Buzbee contends otherwise, and for support cites to our decision in Rios v. State, 186 Md. App. 354 (2009) as authority for our jurisdiction in this matter. W e agree tha t Rios controls, and will proceed to address the 3 The circuit court also denied appellant s claim that the 2009 indictment must be dismissed becau se of a c onside rable pr e-indict ment d elay. The denial of that motion is not before us. 3 merits. We explain. The general rule as to appea ls is that, subject to a few, limite d exceptio ns, a party may appeal only from a final judgment. Nnoli v. N noli, 389 M d. 315, 3 23 (20 05). See Salvagno v. Frew, 388 Md. 605, 615 (2005). The final judgment rule is embodied in Section 12-301 of the Courts Article. Md. Code (1974, 2006 Repl. Vol., 2008 Supp.), § 12-301 of the Courts & Judicial Proceedings. The rule is subject to limited exceptions: [T]here are only three exceptions to that rule: appeals from interlocutory orders specifi cally allow ed by statu te, predominantly those kinds of orders enumerated in Ma ryland C ode, § 1 2-303 of the C ts. & Ju d. Proc. Article; immedia te appeals permitted under Maryland Rule 2-602(b); and appeals from interlocutory rulings allowed under the common law collateral order doctrine. Anne Arundel County v. Cambridge Commons, 167 M d. App. 219 , 225 (2005) (quoting Board of Education v. Bradford, 387 Md. 353, 382-83, 875 A.2d 703 (2005) (further citations omitted )), cert. denied, 393 M d. 242 (20 06). The f irst two exc eptions do not apply in this case.4 We must theref ore determine whether the circuit court s order constitutes an appealable collateral order. 4 A general grant of appellate jurisdiction is provided in Sections 12-301 and 12-308 of the Courts and Judic ial Proceed ings Article for the review of final an d review able judgments. Rush v. Sta te, 403 Md. 68, 100 (2 008). Sectio n 12-303 of the Co urts Article governs the right to ap peal from certain interlocutory ord ers in civil case s, and lists specific exceptions to the final jud gmen t rule. See Md. Code (1974, 2006 Repl. Vol., 2008 S upp.), § 12-303 of the Courts & Judicial Proceedings Article. Section 12-308 provides in part that the Court of Special Appeals has exclusive initial appellate jurisdiction over any reviewa ble judgment, decree, orde r or other action of a circuit court[.] 4 In Rios, the defendant Rios thought that he had entered into an agreement with the State pursuant to which the prosecutio n would dismiss all but one of a variety of charges against him, and that as to the remaining count he would enter an Alford plea. When the prosecutor denied the existence of that accord, Rios sought its enforcement in the trial court by filing a motion to seek that relief. The court denied relief, and Rios appealed to challenge the circuit court s order. We rejected the State s motion to dismiss Rios s app eal, disagreeing with its position that we lacked jurisdiction because Rios sought review of an interlocutory order. Instead, we concluded that Rios s appeal satisfied the collateral order doctrine, which comprises one of three lim ited exc eptions to the f inal judg ment ru le. Rios, 186 Md. App . at 363 (citing cases). We there observed that the order denying enforcement of the plea agreem ent satisf ied the re quirem ents fo r an app ealable collatera l order. We drew extensively from lang uage in Hudso n v. Hou sing Auth ority of Baltim ore City, 402 Md. 18, 25-26 (2007), in which the Court of Appeals observed: The collateral order doctrine permits a re viewing appellate court to treat as final, without consideration of the procedural posture of a case, a "narrow" class of interlocutory orders in "extraordinary circumstances." . . . We have applied gingerly this doc trine to review actions completely separate from the merits of the litigation based on a "per ceiv ed neces sity" of imme diate appella te review. *** The collateral order doctrine may apply when a decision of the lower court meets four conjunctive and strictly construed elements. . . . If an interlocutory decision "(1) conclusively determines the disputed question, (2) resolves an im portant is sue, (3) re solv es an issue tha t is co mpletely separate from the merits of the action, an d (4) wou ld be effe ctively unreviewable if the 5 appeal had to await the entry of a final judgment," then the collateral order doctrine applies. In Rios, we concluded that the circuit court s decision not to enforce a plea agreement met all of these elements: The State correc tly does not contest that the decision meets the first two elements of the doctrine. First, the decision conclusively determined whether the parties entered into a plea ag reeme nt, the pr imary issu e on ap peal. See Jackson, supra, 358 Md. at 267, 747 A.2d 1199 ( denial of the petitioner s motion to dismiss conclusiv ely determines answers the question of the enforcea bility of the agre ement be tween the parties ); Clark, supra, 286 Md. at 213, 406 A.2d 922 ( the order finally resolved the disputed question of whether the plaintiffs were bound by their oral settlement agreement ). Second, this issue is important to the case, as a decision favorable to Rios would result in the dismissal of every charge but one, and obviate the need for trial. See Jackson, supra, 358 Md. at 267, 747 A.2d 1199 (enforcea bility considered an important issue where judgment for appellant would result in dismissal of all criminal charges). The State does contest, how ever, whe ther the third a nd fourth elements of the collateral order doctrine are met. But the third element is satisfied because the existence of an enforceable plea agreement is an issue independent of appella nt s guil t or inno cence . See Jackson, supra, 358 Md. at 270, 747 A.2d 1199; Courtney, supra, 98 Md App. at 65 8, 635 A .2d 8. And the fourth element is satisfied bec ause the ex istence of a plea agree ment is eff ectively unreview able after proceeding to trial and verdict, given that an important purpose of making a plea agreement is to avoid the expense, inconvenience, and uncertainty of a trial. The defendant s rights cannot be fully vindicated if he is compelle d to wait fo r a final ju dgme nt. See Jackson, supra, 358 Md. at 270-71, 747 A.2 d 1199; Clark, supra, 286 Md. at 213, 406 A.2d 922; Courtney, supra, 98 M d. App . at 658- 59, 635 A.2d 8 . Rios, 186 Md. App. at 365. We emphasized that the enforceability of alleged plea agreeme nts is a proper basis for interlocutory appeals because of the strong public policy that favors the plea negotiation process. Rios, 186 Md. App. at 366 (citing State v. Brockman, 6 277 Md. 687, 693 (1976)). T his Court in Rios relied on the holding in Jackson v. State, 358 Md. 259 (2000), in which the Court of Appeals emphasized that what [Jackson] bargained for was th e right not to b e tried, to have the charge s against him dismissed. If that bargain means anything at all, it is that if he fulfills his end of the bargain , he does no t have to go to trial and thus may not be haled into court at all. Jackson, 358 M d. at 270-71 . The right to avoid trial most certain ly could be vin dicated on ly prior to any trial. See id. Quoting from Courtney v. Harford County , 98 Md. App. 649, 658 (1994), the Jackson Court observed that [i]f the defendants must proceed to a trial on the merits, this contractual benefit [from an agreement] will be irretrievably lost. Jackson, 358 Md. at 270. Seeking to distinguish Rios, the State contends that the interlocutory appeal in Rios was from a denial of Rios s motion to enforce a plea agreement. The State points out that Rios and the prosecutio n had diff ered over w hether they ha d in fact reache d an agree ment. According to the State, Buzbee instead seeks to preclud e his prosec ution based on his earlier guilty plea[.] The State continues that, [u]nlike in Rios s case, where the issue was whether the parties had entered into a plea agreement, there is no dispute that Buzbee entered an agreement[.] The State assures us that Buzbee s complaint, that the agreement was violated, can aw ait completio n of his trial an d is review able after final judg ment if he is convic ted. 7 We are not persuaded by the State s approach. There is no substantive difference between Rios and the instant case. Whether a defendant seeks to enforce an agreement, the existence of which is denied outright by the State, or whether the parties quibble over its terms, the root issue is whether Buzbee, as did Rios, can argue pre-trial that he thought he had a bargain with the State that would preclude any fu rther prosec ution. In any ev ent, Buzbee s motion to dismiss effectively rests on the enforcement of the agreement as he interprets the accord. In the final analysis, we discern no effective distinction between the subject of the appeal in Rios and the su bject matter o f instant app eal. The circuit court s decision sub judice satisfies the elements for the application of the collateral order doctrine. The order conclusiv ely resolved the scope of the parties agreeme nt. Following Rios, we conclude that the importance of a circuit court s decision can not be overstated. Maryland cases have emphasized the right not to be tried. See Rios, 186 Md. App. at 365. Whether a defendant seeks enforcement of an agreem ent, or its favo rable interpretation, the right not to be tried is implicated. M oreover, the interpretation of the agreement offers an issue separate and distinct from the issue of Buzbee s guilt or innocence. Fina lly, because th e existence of the a ccord a t issue, an d its prec lusive e ffect, vel non, is effectively unreviewable, we conclude, following Rios and Jackson, that the circuit court s order in the case before us qualifies as an appea lable collateral order. 5 5 We are c ertainly mindfu l of the parsim onious application of the collateral order doctrine. See gene rally Kurstin v. Bromberg, 191 Md. App. 124, 136-46 (2010) (citing (contin ued...) 8 Nature and Extent of the Plea Agreement Our discussion o f the parties c ontentions w ith respect to the interpretation of the agreem ent relies on testim ony of tw o releva nt hearin gs in this matter. 1984 Hearing The plea hearing at issue was conducted on June 25, 1984. The terms of the agreement were recited as follows: [MR. HAMILTO N:] If I might outline the terms of the agreement under which the defendant is going to be proceeding today. That this is p ursuant to an agreement that was worke d out between M r. Bours on behalf of Mr. Buzbee and myself on behalf of the State s Attorney s office. That Mr. Buzbee would be entering a plea of gu ilty to the first count in Criminal Case No. 29687 which charges the offense of rape in the first degree. That is a felony und er Maryland statute by whic h, for wh ich the maximum period of incarceration would be up to a life sentence. He would be, of course, withdrawing any previously entered plea of not guilty in that case. It is contemplated that the defenda nt would be fully adm itting his guilt to this offense tendering neither an Alford plea or a nolle contendere plea or any other sort of statement b efore the C ourt in any way limiting his liability or responsibility for this particular offense. The plea would be presented to the Court pursuant to the provisions of Maryland Rule 733 to the following extent: that the Court wou ld be free to impose u p to the ma ximum s entence fo r this case which would be life in imprisonment but that the limitation under Ru le 733 would b e that any senten ce impose d would commence November 5, 1982. 5 (...continued) cases). Indeed, federal cases are uniform in holding that an interlocutory order relating to a non-pro secu tion agre eme nt sim ilar to that n ow b efor e us d oes n ot qu alify f or immediate appellate review. See, e.g., United States v. Ledon, 49 F.3d 457, 459 -60 (8th Cir. 1995). Cf., e.g., United States v. Wampler, 624 F.3d 1330, 1333-37 (10th Cir. 2010) (enforcement of failed ag reement; co llecting cases ). Notwith standing, w e believe tha t Rios controls. 9 There is no sentence that is binding on the Court in this case. In other words, it could be anywhere from a life sentence on down . At the time of sentencing and the State has no objection to the matter proceeding to sentencing today. If everyone else is in accord with that, the State would enter nolle prosequis to the remaining counts in 29687 as well as to the indictme nts in 29686 and to the charging document in 30479. 30479 is a misdemeanor case in which the defendant was convicted in District Court and in fact had already served the maximum period, in excess of the maximum period of incarceration by the time the case had reached the trial level in the District Court. And I believe that would be the [THE CO URT:] Is that your understanding, Mr. Bours? [MR. BOU RS:] Just about, Your Honor, one other matter that Mr. Hamilton and I talked about and he confirmed today but just did not mention on the record is that Mr. B uzbee w as originally indic ted in this case in this co urt in seven separate cases, 29681 through 29687. Two of the other cases have previously been nolle prossed, Criminal No. 29682 and 29684 and of co urse it is the law that a nolle prosequis enter[ed] before any testimony or before jeopardy attaches does not operate as an acquittal on a charge and those charges could be brought back or reindicted at some future date. Mr. Hamilton has agreed tha t in consideration of M r. Buzbee pleading guilty and if the Court decides to accept his guilty plea in 29687, that the State under no circumstances will reindict or recharg e the cond uct, the incidents, the events, whatever you want to describe it that were orig inally indicted in Criminal Nos. 29682 and 296 84 even if they got additional evidence at some future point that those o ffense s may ha ve bee n com mitted b y Mr. Bu zbee. The court then inquired whether there were any additional agreements: Q . . . Al l righ t, now you are pleadi ng guilty a fter you have, you or your counsel has had d iscussions w ith the State s Attorney. Was there any agre eme nts m ade t hat w ere n ot presen ted to me to day? A No , sir. Following an extensive e xaminatio n of the de fendant, the court accepted the plea, and proceeded to sentencing. 10 2010 Hearing At issue here is whether the parties to the 1984 plea agreement contemplated that the State would n ot prosecu te Buzbee for any additional rapes. On March 19, 2010, the circuit court condu cted a h earing o n Buz bee s m otion to dismiss the 200 9 indictm ent. Barry Hamilton,6 then the Assistant State s Attorney who was p rosecuting Buzbe e, and Buzbee s then counsel Reginald W. Bours, III, testified. In addition, the circuit court also heard from Detective J oseph M udano, of the Mo ntgomery C ounty Police D epartmen t cold case u nit. Mr. Hamilton and Mr. Bours had discussed possible dispositions of some of the outstanding cases. The latter recalled the preliminary discussions that led to the plea agreeme nt: [MR. BOURS:] I found my original notes from September of 83 a discussion with him where w e were discussing w hat would hap pen if Mr. Buzbee did plea. And during that period of time, Mr. Hamilton was offering a 20 year deal. It would be binding on whatever judge took it for the remaining case or cases in which any plea was entered. And we took that offer to many different judges in the fall of 1983. Judge Mitchell turned it down. Judge Miller turned it down. Judge Mitchell wrote a short letter to us dated October 31 indicating that. Judge Miller wrote a somewhat longer letter which I ve shared with Mr. Maloney and described, turning down the plea for the 20 years. I can t tell you exactly when we started discussing a different length of sentence, but eventu ally we did discuss just pleading to one or two first degree rapes, which carry a life maximum and with the understanding, and th e only real plea concessio n would have been that the sentences began on November 5, 1982, the date of Mr. B uzbee s arrest. S o that w as discu ssed. And to make 6 Mr. Hamilton h as since been a ppoint ed to the District C ourt of Marylan d. Judge Ham ilton w ill be refe rred to in this opin ion as Mr. H amilton . 11 a very long story short, that was eventually accepted by Judge Cahoon (phon etic sp.). [DEFENSE COUNSEL :] Okay, now during your representation of Mr. Buzbee, and conversations you were having [with] Mr. Hamilton regarding plea negotiations and whatnot, were you, as Mr. Buzbee s attorney, concerned with any possibility of other charges, cases that had not yet been charged that might be out there, other sexu al assaults that he might get Mr. Buzbee might get accused of? A A bsol utely. Q We re you conce rned abo ut that? A Absolute ly. The basic po lice report that I was furnished as part of discovery listed eight or nine cases and only one or two of which were among the ones th at were indicted . So there were quite a number of other cases that were listed in the basic police report. I was of course aw are of pub licity at all times when we were discussing the case and the publicity at the time was that the police had 17 or 18 rapes between 1981 and 1982 that they had investigated as part of the Aspen Hill Rap ist p roblem. S o we wer e alw ays interested in those. And then Mr. Hamilton dropped two cases without trial. So of course that did not o perate tw o of the ind icted cases, tha t did not operate as an acqu ittal. And so e xplicitly we talke d about th e fact that we would not recharge those two cases. And we exp licitly talked about h e would not if Mr. Buzbee pled he would not file charges in any other case. The most explicit notes I have on that come from I b elieve S eptem ber of 83. Mr. Bours also testified that he took deta iled notes of his conversations with police and the prosecutor. He described his notes, and his testimony reflects his understanding of the negotia tions and ag reement: And these notes indicate that Mr. Hamilton called me at 3:30 p.m. on September 13, 1983. And I stand by these notes as being exactly what happened at the time, because it was my practice to write things down to make sure that I could rememb er them. I don't actually remember ev ery word in it, 12 but I would say this is absolutely what he told me. Q Okay, and can you just what's the nature of the conversation that you had and what do you A Wel l, her e's the context. There were two cases left that had not been tried. We either had trials or nolle prosses up to this point. And as of September 13, 1983, the two cases that were left went by the name W[.] and S[.]. 7 . . . Those were the last two cases that had not yet been tried. Mr. Hamilton told me he had no plans to re-indict Buzbee, Mr. Buzbee, on the old cases, and would not do so if he pled in the W[.] and S[.] cases. He also told me h e had no plans on other uncharg ed ca ses a nd he said he didn 't want to bind him self if, for exam ple, the defe ndant is implicated in murder or a serious injury rap e. But he had absolutely no plans as of September 13, 1983 to indict any other uncharged cases. And there was a pending trespass case that I think was on appeal from the district court that was kind of the first thing in the investigation of Mr. Buzbee that led to his ultimate arrest. That case was going to be dropped, he said. And then w e had a discuss ion abo ut if M r. Buzbee pled guilty on the W[.] and S[.] cases, and the two cases that w ere then on appea l, which were K[.] and H [.] were reversed and had to be retried. We had a discussion about whether the pleas in these cases would be used to impeach Mr. Bu zbee sho uld he testify in any futu re trial after a rev ersal on app eal. And Mr. Hamilton's position was that he would not agree not to use those for impeachm ent purposes. And he was consistent on that all through the negotiations, up until the very end. In other words, when Mr. Buzbee did eventually enter a plea in the S[.] case, it could have been used against him for impeachment purposes had he go ne to trial or re-trial after or reversal on appeal. Mr. Bours recalled tha t, after the plea, tw o of the inv estigating de tectives aske d to discuss addition al cases with B uzbee . They h ad explained to Mr. Bours that, since they 7 It is unnecessary to nam e the ass ault victim s in this c ase. See Muthukumarana v. Montg omery C ounty, 370 Md. 447 , 458 n. 2 (2002). 13 thought that Buzbee would not be charged in any more cases, Buzbee could speak with them about open cases. Buzbee declined.8 Mr. Bours emphasized that the prosecutor agreed not to prosecute Buzbee in any case where he was a suspect, save for an instance of homicide or serious injury. On cross-examination, Mr. Bours conceded that the full extent of the plea agreement was not on the record of the guilty plea hearing: Q And did the judg e bind him self to that plea agreeme nt? A I'm sure h e did. We wouldn 't have entered it if he hadn 't. Q The question I'm building up to is why is there nowhere in the transcript or the plea this part of the agreement that there will be no further prosecutions of these other cases? A I can on ly give you a n opini on on th at, Mr. Malo ney. And my opinion would be that nobody wanted to advertise that that's what we had agreed to do. We did n ot want all th e uncharg ed victims to feel like they were being given short shrift or ignored in this process. An d so I am sure M r. Hamilton did not want to advertise to the public in general that nobody else would be prosecuted and no other uncharged case would be prosecuted because there were victims in those cases, too. Q And that's your opinion. You don't really know, is that what you're saying? A Well, I think it was implicit in all our discussions. We're goin g to what we're going to d o is this. A nd th en you, M r. Ha milto n, or you, th e Sta te's Attorney's office for Montgomery County is not going to prosecute him any more. We agreed to that in no uncertain terms between ourselves whether we 8 Mr. Bours recalled that [t]he substance of the conversation [with the detectives] was that now th at he can't be prosecuted this would be Beasley or Hutchinson talking now that he can't be prosecuted for any of the cases tha t we had o pen on h im, we'd like to sit down with hi m and try to close out our file. 14 ever put it in front of J udge C ahoon o r any other judg e or said it publicly, that was our a greemen t. Q So you're saying there's a side ag reement, a gentleman's agreement between you and Mr. Hamilton that was not part of the plea negotiations? A No. It was part of the plea nego tiations. It was n ot part of the record in open cou rt. Q So are you saying there's two different pleas, there's one that the Court was part of and a separate part that was just between you and Mr. Hamilton? A No. What I'm saying is that the cases that had not yet been charged were never going to be charged. That was my agreement with the S tate's Atto rney's office for Montgomery County through Mr. Hamilton, who was negotiating. Q Did Judg e Cahoo n incorpo rate that in any w ay? Was h e ever told about that? A You kno w, I h aven 't read the transcript of the plea itself, Mr. Maloney, but I'm sure he wasn't. I'm sure he wasn't told that. Well, I'm not sure he w asn't told that, but I'm sure that it was not part of the public record, for the reasons I've just stated. Mr. Bours later clarified the scope of his understanding: Q That's the poin t I'm trying to make. It's always a plea agreement to known cases. Have you ever seen this agreement for unknown cases? A Let me try to put it this way. If Mr. Hamilton or the detectives had come to me before we went to trial and given me a list of all the cases and given me discovery on each of the cases, I would be willing to say to you today that was it. That we were only talking about those cases. But the State, for whatever reason, or the police, for whatev er reason, never gave me information about the uncharged cases except at a bare minimum the name of the alleged v ictim and the date of the alleged offense that appears in some of these reports. So our discussions and my very clear understanding is that anything that happened before his arrest that was then known to the State o r otherwise , as long as it was in the same category, was out of bounds. 15 Q The category being cases that he was a suspect in? A No. Rape cases o r rape an d related condu ct cases . As long as there was no serious injury to the victim. *** Q So you're giving us that laundry list -- rape, robbery, assault -- they also could not be charged is what you're saying? A Righ t. When reminded by the prosecutor that such an open-ended plea agreement was unique, where the State would forego any further prosecution for even then unknown offenses, Mr. Bours responded: A The term in the case at hand was completely open. It was we're not charging him with any more. Okay, we're not going to try him. After you enter this plea, because p resumab ly part of the plea agreeme nt was he had to testify under oath and admit under oath his guilt on the last case, the one that Judge Cahoon heard Mr. Hamilton wanted a complete ly unassailable g uilty finding that would never result in reversal on appeal or what have you. And he argu ed fo r and got a life s ente nce. And they that was it. That's the on ly way I can pu t it. Mr. Hamilton took the stand, and his testimony conflicts with Mr. Bours s recollection of the agre ement: Q All right, let's cut to the quick to the issue on the table now . Did you make any type of p lea agre emen t with M r. Bour s that his client, Timothy Buzbee will not be prosecuted for any uncharged or unknown rapes when he made a plea in this case in 1984? A No, I m ade no su ch agreem ent. Q And I'll ask you the que stion I asked Mr. B ours have you ever heard of 16 a prosecutor ever giving a blank check we'll never prosecute for cases known or not known to your client being involved with? A No. I mean, I have I never was involved in such a thing. And in the discussions that you and Ms. Grimes and I have had about this, the only way I could see th at that set of circ umstances would happen was that it would be accompanied by what I would call a "Come to Jesus" meeting with the defendant where he or she would layout everything, everything they've ever done fro m birth until th at mome nt. Q Did that ever happen with Mr. Buzbee? A Absolute ly not. Absolu tely not. We never got one word of any admission of any misconduct from Mr. Buzbee except the statement of guilt extracted by Judge Cahoon at the plea. *** A Again, without looking at it, it would have been contrary to my unvarying practice and this was one of the two biggest cases I handled in my entire time in the State's Atto rney's office n ot to put the entirety of the agreement on the record. Q Was there any side agreement between you and Mr. Bours that you did not put o n the reco rd be caus e of f ear o f publici ty? A I don't think so . I do agree w ith Mr. Bo urs that the ca ses that w e knew about, the ones where we brought people in for the lineup that night w here they failed to make identifications, those cases were not going to be revived. But there was never an ything about cases whe re we had no c onnection of M r. Buzbee to them. And Mr. Bours cited that I said it cou ld involve a homicide, it could involve serious injury to a victim those were only examples of the reasons that I wasn't about to sign a blank chec k. And the w ay Mr. Bours described Andy Sonner's management style was absolutely correct. He invested an incredible amount of trust in the people that worked for him. But we also knew the points at which we could not possibly make a move without consulting him. And that would have been one of them. No way would I have ever given him a blank ch eck witho ut having any specific authority and approval on th at. A nd I'm sure he w ould neve r have gran ted it again without the "Come to Jesus" meeting. 17 Mr. Hamilton emphasized that he was not signing off on something [he] knew nothing about. At the time of the hearing, Detective Jose ph Muda no had served w ith the Montgom ery County Police De partment f or 30 years, w ith the most re cent five years spent with the cold case unit. He testified that, based on his review of the original files and the current records, that he had not seen the names of the four all eged victims in the present indictment in the record s from the early c ases. The circuit court denied the motion to dismiss, ruling as follows: All right. We're here on the defendant's Motion to Dismiss th e indictmen t in this case on two grounds. One of the grounds that's being requested in support of the dismissal is the delay of some 30 years between the alleged commission of these crim es and the d ate of indictm ent. *** The second a spect of this m otion to dismiss arises out of the d efen dant's assertion that there was a plea agreement entered into between the State and the defe ndant ba ck in 1984 wh ich e ssen tially commit ted the State to not prosecute the defendant for any other rape . The cou nsel have b oth referred to page 12 of the transcript of the plea that was taken back on June 25, 1984, which is Joint Exhibit 1, which the Court inquires of Mr. Buzbee, who is under oath at th at time, "Question: Are you pleading guilty after you have, you or you r counsel, has had discussion with the State's attorney? Was there any agreement made that was not presented to me today?" "Answ er: No, s ir." Now, I understand what Mr. Shefferman is saying. Certainly, it's a defendant responding and you know, there may certainly be some difficulty by the defendant in speaking up and putting everything that was on the record that 18 needs to be, that w as agreed to , put it on the rec ord so that it's clear. He certainly had counsel present who would have been able to and did in fact correct some matters on the record. I would note that on page 26 of the transcript in which M r. Bours is go ing into his p resentation, in which he states that "probably one of the bases for the guilty pleas and one of the reasons why guilty pleas are encouraged to some extent is because both sides get something out of the guilty plea. Mr. Buzbee in a way gets s omething out of this in the sense that this is the end as far as he's concerned as to the seven charges that have been placed ag ainst him. A nd the rem aining case s, if the appe als result in new trials, will be retired, I presume. At any rate, this puts an end to the trials and it makes ce rtain that he can devote himself to some hope; at least, of rehabili tation." Now, I understan d Mr. B ours' position w ith respect to not wan ting to put things in the record, that there was some concern that if uncharged victims learned that there had been a side deal entered into that precluded the State from prosecuting those other cases, that given the publicity involved, that perhaps that wasn't put on the record in order to address that concern. But what is on the reco rd is clear, that tha t is in essence th e plea agreeme nt. The seven charges that were placed against him would not be prosecuted. I've reviewed Defendant's Exhibit No. 3, which were the notes taken by Mr. Bours following the letter dated September 12. It was sent by Mr. Bours to the prosecutor in this case. And the Septe mber 12 letter, which is Defendant's Exhibit 2, in the second full paragraph specifically states, "In an area that is somewhat less clear in m y mind, I know we have also discussed the other charges that have been pending against Mr. Buzbee in criminal nos. 29681 through 28687. Two complete cases have been dropped, namely criminal nos. 29682 and 29684. At one time you indicated that those indictments might be r evived. B ut I believe the overall n ature of ou r discussion on this plea a greemen t carries with it the tacit understandings that you will not revive those two indictments once the defendant has entered a guilty plea on these tw o. I would also assume that once the defendant has admitted guilt in two cases, your office has no significant interest in prosecuting him on any other charges, whether previo usly indict ed or no t." 19 And obviously, the operative language is "I would assume." There's no agreement that's been entered into. In a subsequent telephone conversation, Def endant's Exhibit 3, number 2 of the notes -- "No plans on uncharged cases either, but doesn 't want to bind himself, if, fo r example , defenda nt is implicated in murder or serious injury rape. No hint he had defendant on burg lary, et cetera." Again, the operative words there are "no plans on other uncha rged ca ses." Judge Hamilton's testimony is specific, and that is that he did not enter into any plea agreement that M r. Buzbee wo uld not be prosecuted for any uncharged or unkno wn rape s. It's further spec ific that if there was going to be in essence a blank check agreement to not prosecute Mr. Buzbee on other unknown or uncharged rapes, that that agreement would first have to be approved by the Sta te's Attor ney at the t ime, Mr. Sonner, and would be accompanied by a full disclosure meeting with the defendant during which he fully disclosed his involvement in any and all criminal cases. Judge Hamilton further agreed that the cases tha t were sub ject to his understanding with Mr. Bours were only those cases that the State knew about at the time which were those cases in w hich the pe ople wh o had com e in to view the lineup failed to make any identification, not those other cases that had no connection with Mr. Buzbee. As Detective Mudano testified, the cases that are und er indictmen t in this case are cases that had no prior connection with Mr. Buzbee. The complaining witnesses identified in the cases under indictment in this case there's no reference to those individuals, either in De fendant's E xhibit 6 or in any other cases. These complaining witnesses are not identified in cases which have been referenced as cases closed by exception by the police at the time in which they b eliev ed th e def endant w as a s uspe ct an d the y had no reason to believe that in fact he was a suspect in those cases. Accord ingly, I'm satisfied tha t the plea agre ement tha t was entere d in this case back in 1984 has not been violated by the State's subsequent indictment of Mr. B uzbee in th ese cases, an d that the plea agreement was honored in the fashion in which it was entered into and met and I will deny the motion to dism iss. 20 Analysis Plea agreements are, as an initial matter, construed according to contract principles. See Cuffley v. Sta te, 416 Md. 568, 579 (2010) (citing Tweed y v. State, 380 Md. 4 75, 482 (2004)). The interpretation of a plea agreement, however, is also informed by due process and principles of fundamental fairness, so that standards of contract interpretation alone are not enough to resolve disputes over the proper interpretation of a plea bargain. Cuffley, 416 Md. at 580 (quoting Solorzan o v. State, 397 M d. 661, 6 68 (20 07)). See gene rally Santobello v. New York, 404 U.S. 257, 261-62 (1971). Courts must construe the terms of a plea agreement according to the reasonable understanding of the defendant when he pled guilty. Solorzano, 397 Md. at 668. We conclude that the circuit c ourt did not err in concluding that the plea agreement did not obligate the State not to prosecute any and all additional charges, such as those brought by indictment in the instant case. At the time the circuit court accepted the plea agreeme nt, such accords were governed by Maryland Rule 733.9 the Rule p rovided in relevant pa rt: 9 Pursuant to a Rules Revision effective 1 July 1984, Title 4 of the Maryland Rules replaced Chapter 700 of the former Rules[.] State v. Daughtry, ___ Md. ___, ___, No. 81, Sept. Term 2010, slip op. at 18, 2011 M D. L EXIS 216 *29 (filed Apr il 25, 2011). The plea hearing took place five days before the effective date of Rule 4-243. 21 Rule 733. Plea Agreemen ts. a. Condition s for Agree ment. The defenda nt or his cou nsel may ente r into an agre ement w ith the State's Attorney to plead guilty or nolo contendere on any proper condition including one or more of the following conditions: *** 4. That the S tate will not charge the defendant with the commission of certain other offenses; *** d. Record of Proceedings. All proceedings pursuant to this Rule, including tender of the plea, advice by the court inquiry into the voluntariness of the plea or plea agreements, and inquiry into the factual b asis for the p lea shall be on the record. If the parties stipulate to the court that disclosure of the plea agreement or any term the reof wo uld cause a substantial risk to any person of physical harm, intimidation, bribery, economic reprisal or unne cessary annoyance or embarrassment, the court may order that the record be sealed subjec t to terms it deem s appro priate. Examining the language of Md. Rule 4-243, the successor to Rule 733, the provisions in effect at the time of the plea in this case, the Court of Appeals recently emphasized: The record of th at proceed ing must be exam ined to ascertain precisely what was presented to the court, in the def endant's presence and b efore the court accepts the agreem ent, to determ ine what th e defend ant reasona bly understood to be the sen tence th e parties negotia ted and the cou rt agree d to imp ose. The test for determining what the defendant reasonably understood at the time of the plea is an objective o ne. It depen ds not on w hat the def endant ac tually understood the agreement to mean, but rather, on what a reasonable lay person in the defendant's position and unaware of the niceties of sentencing law 22 would have understood the agreement to mean, based on the record developed at the plea proceeding. It is for this reason that extrinsic evidence of what the defe ndant's actual understanding might have bee n is irrelevant to the in quiry. Cuffley v. State, 416 Md. at 582 (2010) (fo otnote omitted). As noted, Rule 733d required that All pr oceed ings pu rsuant to this Ru le . . . shall be on the record. See Banks v. State, 56 Md. A pp. 38, 53 (1 983) (stating that provisio n that is deemed material to a plea agreement should be stated on the record. ). The Court noted in Cuffley that the principal purpose of Rule 4 -243 is to elim inate the po ssibility that the defe ndant ma y not fully comprehend the nature of the agreement before pleading guilty. Any less would offend notions of due process. Cuffley, 416 Md. at 581 (citing Santobello v. New York, 404 U.S. at 261-62). In this case, Buzbee s defense counsel, Mr. Bours, acknowledged at the hearing on his motion to dismiss that not all of the terms of the agreement were placed on the record at the plea. Indeed, he testified tha t the extent of supposed agreeme nt by the State n ot to prosec ute wa s conce aled fro m the p ublic be cause o f the an ticipated repercu ssions. We review de novo the terms of the agreement as placed on the record at the appropriate guilty plea hearing . Cf. Twee dy v. State, 380 Md. 475, 482 (2004) (determination whether plea agree ment viola ted presents qu estion of law ); Rankin v . State, 174 Md. App. 404, 408 (same) , cert. denied, 400 Md. 649 (2007). Based on this scrutiny, we conclude that the plea agreement does not preclude the instant prosecutions. 23 The recitation of the agreement at the plea hearing does not support Buzbee s claim that the State un dertook to aban don all ot her p oten tial cases , save for murder o r cas es involv ing s erious in jury. ORDER DENYING MOTION TO DISMISS AFFIRMED. CASE REMANDED TO THE CIRCU IT COURT FOR MONTGOMERY COUNTY FOR TRIAL. APPELLANT T O PAY COST S. 24
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
