65 A.2d 285 | Md. | 1949
Henry R. Raymond, Superintendent of the Maryland State Reformatory for Males, has brought this appeal from an order of Judge Edmond H. Johnson, of the First Judicial Circuit, discharging Leonard Szydlouski from appellant's custody after hearing on habeas corpus. The judge stayed the order pending appeal. Code Supp. 1947, art. 42, § 3C.
On September 2, 1947, petitioner, then eighteen years old, was convicted in the Criminal Court of Baltimore on charges of carrying a concealed weapon and burglary. He was sentenced to serve in the Reformatory six months for carrying a concealed weapon and two years for burglary, the terms to run consecutively.
At the hearing on habeas corpus on August 6, 1948, petitioner swore that, while he was held in confinement before his trial in the Criminal Court, he asked a guard to allow him to use the telephone, and for that purpose to give him some of his money, which had been taken from him, to call a lawyer, or to ask his sister to pay for one, but was denied the request. He also swore that he asked the captain for the same favor. He further stated that when he was taken to the Court House someone asked him if he had a lawyer, and he replied "No," and he was told to wait in the waiting room for trial. He was asked by an Assistant State's Attorney whether he wanted to plead guilty or not guilty, and whether he wanted to be tried by the Court or by jury. He pleaded guilty of carrying a concealed weapon, and not guilty of burglary. He elected to be tried by the Court without a jury. He *606 did not ask the Court to appoint a lawyer for him. He was given the opportunity to cross-examine the State's witnesses, and he cross-examined some of them. He was given the opportunity to testify in his own defense, and he took the stand. He was also given the opportunity to call any witnesses he desired to testify in his behalf.
Judge Johnson held that there was nothing in the record to show that petitioner had been advised of his right to be represented by either counsel of his own choosing or by someone appointed by the court, and that in view of his age and his general position and the seriousness of the charges against him, he had been deprived of his constitutional rights.
First. We consider whether the trial in the Criminal Court violated Article 21 of the Declaration of Rights, which provides that in all criminal prosecutions every man has a right "to be allowed counsel." Originally in England a prisoner was not permitted to be heard by counsel on the general issue of not guilty on any indictment for treason or felony. That rule was relaxed by statute in 1695 to the extent of permitting a person accused of treason the privilege of being heard by counsel. 7Will. 3 ch. 3. The rule forbidding the participation of counsel remained in force as to indictments for felony until changed by statute in 1836. 6 7 Will. 4, ch. 114. The early English common-law rule was not accepted in America. In at least twelve of the thirteen Colonies the right of the accused to have counsel in the trial of any criminal charge was fully recognized. The Constitutions of many of the States in varying language guarantee to persons accused of crime the right to have the assistance of counsel for their defense. In 1777 New York adopted a provision similar to that in the Maryland Declaration of Rights, which was originally adopted in 1776. A constitutional mandate that the accused should have the right to be heard by himself and by his counsel was adopted by New Hampshire in 1774, by Pennsylvania in 1776, by Delaware in 1782, and by Connecticut in 1818. New Jersey had its first constitutional provision on the *607 subject in 1776, North Carolina and South Carolina in 1868, Rhode Island in 1843, Georgia in 1798, and Massachusetts in 1790.
In the light of the common-law practice in England it is evident, as Justice Roberts observed in Betts v. Brady,
In Coates v. State,
Second. We consider whether the failure of the Criminal Court to appoint or offer to appoint counsel for petitioner was a denial of due process of law in violation of the Fourteenth Amendment. This was the ultimate question decided by the Supreme Court in Betts v. Brady, supra, and also by the Court of Appeals in Coates v. State,
In Coates v. State, supra, where the defendant pleaded guilty to four indictments and not guilty to five, and the Criminal Court of Baltimore imposed sentences totaling *609
90 years, it appeared that the defendant was only 19 years old, was inexperienced in court procedure, and was not represented by counsel, and there was no cross-examination of the State's witnesses, and confessions not properly introduced were used against him. We reversed the judgments because failure to appoint counsel under the circumstances was a denial of due process. But in Smith v. State, supra, where the defendant was tried on four indictments, one for robbery, two for robbery with a deadly weapon, and one for assault, we refused to disturb the sentences totaling 50 years and 6 months, although the defendant was not represented by counsel at the trial, since he was an old offender, had been tried for criminal offenses several times before and was familiar with criminal trials, and it further appeared that his rights had been protected at the trial. InJewett v. State,
In Betts v. Brady,
In Coates v. State,
Of course, we are not at liberty to set up the Maryland concept of due process against controlling decisions of the Supreme Court. In Coates v. State,
Since that time at least fifteen more decisions of the Supreme Court directly in point, not including others decided on jurisdictional points, have not dispelled the confusion. Of these fifteen cases, only two, Hawk v. Olson,
In Foster v. Illinois,
"The rationale of this application of due process was first expounded in Powell v. Alabama,
In the instant case petitioner has not sustained the burden of proving that for want of benefit of counsel "an ingredient of unfairness actively operated in the process that resulted in his confinement." However, in Uveges v. Pennsylvania,
In Wade v. Mayo,
"There are some individuals who, by reason of age, ignorance or mental capacity, are incapable of representing themselves adequately in a prosecution of a relatively simple nature. This incapacity is purely personal and can be determined only by an examination and observation of the individual. Where such incapacity is present, the refusal to appoint counsel is a denial of due process of law under the Fourteenth Amendment."
If the Wade and Uveges cases are not in harmony with theBetts, Foster and Bute cases, it is our duty to follow the later cases. As we have said, petitioner in the instant case has not sustained the burden of proving that any *614 injustice occurred and affected the decision because of want of counsel. In the Wade and Uveges cases, however, the Court seems to hold that it is a denial of due process to fail to appoint counsel, whether requested or not, for an individual who, by reason of age, ignorance or mental capacity, is incapable of representing himself adequately in a prosecution of a relatively simple nature, although there is no evidence that the court, sitting without a jury, has actually failed to protect him adequately and to prevent any unfairness in the trial or injustice in the result. By that test the judgment of conviction in the instant case cannot stand. The alleged refusal of the guard and the police captain to permit petitioner to telephone was not a denial of due process, but it does indicate a desire for a lawyer and lack of experience as to how to get one, and lends color to the alleged fact that petitioner was not asked whether he wanted one appointed for him. It is significant that the Assistant State's Attorney, who questioned petitioner at the habeas corpus hearing about his own interview with him before the trial, did not himself testify or offer other testimony in contradiction or amplification of petitioner's version of the interview. There is no evidence of previous experience with criminal procedure. He had been sent as a delinquent to St. Mary's Industrial School. But in theory juvenile courts are not criminal courts, and in practice they studiously avoid the atmosphere of a courtroom. Judge Johnson, who saw and heard petitioner testify, found that the sum total of relevant circumstances "amount substantially to an abridgement of his rights."
We have not been called upon to decide whether petitioner can be retried in case the judgment of conviction is held void on account of denial of due process of law. We leave this question open by modifying the order appealed from by remanding petitioner to appellant, to be transferred to the custody of the Warden of the Baltimore City Jail to be held for any further proceedings which the State may take. Basta v. State,
Order modified and as modified affirmed, without costs.