Trial judges are not obligated to conduct a “knowing and voluntary” inquiry when a defense lawyer strategically concedes guilt on lesser charges – a strategic concession like this is not tantamount to a guilty plea

Denardo Hopkins v. United States, No. 12-CF-745

(decided Jan. 30, 2014)

Players: Glickman, Blackburne-Rigsby, Nebeker.  Opinion by Judge Glickman.  T. Gail Maddox-Levine for Mr. Hopkins.  Trial judge: Florence Pan.

Facts:  When two MPD officers interrupted a craps game in which Denardo Hopkins was participating, Mr. Hopkins got up and ran.  A foot chase ensued, and the pursuing officer testified that he saw Mr. Hopkins throw an object that “hit the wall and fell to the ground with a metallic clang” (slip op. 2).  The officer caught up to Mr. Hopkins and patted him down, finding fifty-one “zips” of cocaine and heroin and $230 in his pocket.  The officer also claimed to have gone back and seen a semiautomatic pistol in the location where he saw Mr. Hopkins throw something.

Mr. Hopkins was charged with two counts of possession with intent to distribute (PWID) while armed and five weapons counts.  In his opening statement, Mr. Hopkins’s lawyer told the jury that Mr. Hopkins conceded the PWID counts but contested that he had a gun.  After a trial premised on that theory, the jury convicted Mr. Hopkins of the two unarmed PWID charges but deadlocked on the “while armed” enhancements and the five weapons counts.  The trial judge declared a mistrial on the gun counts and sentenced Mr. Hopkins to three years in prison for the drug charges.

Issue:  Were the defense lawyer’s concessions of the PWID charges in his opening statement “functionally equivalent to guilty pleas,” thereby requiring the trial judge to conduct an inquiry, pursuant to Criminal Rule 11, to ascertain that Mr. Hopkins “knowingly and voluntarily agreed to the concessions of guilt”?

Holding:  No.  The purpose of the Rule 11 inquiry is to ensure that the defendant understands the constitutional rights he is waiving and that he is doing so voluntarily.  Defense counsel’s concession did not relinquish any of Mr. Hopkins’s constitutional rights, which he in fact exercised at trial.  Although “[i]n some cases, an attorney’s concession at trial of the defendant’s guilt might support a claim of ineffective assistance of counsel,” (slip op. 13), in this case counsel’s concession “was a reasonable and evidently fruitful trial strategy,” (slip op. 14), and Mr. Hopkins did not contend otherwise.

Of note:  The Court leaves open the possibility that, in some cases, a concession of guilt might require judicial inquiry à la a guilty plea, such as where the trial judge “has reason to question whether a concession was made against a defendant’s wishes or may otherwise signal representational problems.” (slip op. at 14).  CM.

Read full opinion here