Anderson v. State

Anderson, J., delivered the opinion of the Court. On October 31, 1966, the appellants, Ronald B. Anderson and Douglas A. Washington, Jr., were convicted in the Criminal Court of Baltimore by the court, sitting without a jury, Judge J. Gilbert Prendergast presiding, of robbery. On November 23, 1966, Anderson was sentenced to ten years in the Maryland Penitentiary and Washington was sentenced to not more than ten years in the Maryland Correctional Institution. Appellant Anderson raises two contentions on appeal : 1.

That the appellant was deprived of due process of law under Article IV, Section 15, of the Constitution of Maryland, Annotated Code of Maryland (1957) ; and under the Fourteenth Amendment to the Constitution of the United States, because of failure of the State to ³⁶⁵ diligently process his appeal and stand the case for hearing upon the transmission of the record. 2. That the appellant was deprived of due process of law under the Sixth and Fourteenth Amendments to the Constitution of the United States where he was forced to go to trial with counsel to whom he strenuously objected prior to the actual commencement of his trial. Appellant Washington’s sole contention on appeal is that the evidence was not sufficient to sustain the conviction. From the evidence adduced below, the trial court could properly find that on July 19, 1966, at 3:15 p.m., Joseph Klein, a salesman for the Madeira Wine and Liquor Company, left a customer’s store at Franklin and Fremont Avenues in the City of Baltimore, and was on his way to his automobile when he was yoked from the rear by three men.

Mr. Kein was knocked to the pavement, his pockets were ripped out, and checks, plus cash amounting to $30 or $40, were taken. Three police officers personally observed the appellants in the commission of the crime. The officers immediately sought to apprehend the three assailants who, upon noting the presence of the officers, took flight in an attempt to escape. The officers remained in hot pursuit with Officer Frederick Entz pursuing Washington and Officer Howard Saukitis pursuing Anderson.

Appellant, holding four of the stolen checks, was apprehended by Officer Saukitis after being shot by the officer. Appellant Washington’s flight also culminated in his apprehension by another officer after a long involved path of flight. In court, both Officers Entz and Saukitis identified the appellants as the assailants of Mr. Klein. Appellant Anderson did not take the stand.

At trial, he requested a postponement to secure unknown witnesses. The request was denied. Appellant then noted his discontent with his appointed counsel contending his counsel was unprepared and noting for the record his desire to have different counsel. Appellant Washington denied his participation in the robbery but admitted being chased.

Following the conviction, appellant Anderson moved for a new trial urging the court to appoint different counsel to argue ³⁶⁶ the motion. At that hearing, he admitted he had no additional witnesses to produce. Ronald B. Anderson Appellant’s first contention is without merit. Appellant Anderson urges that the delay involved in the processing of his appeal was “substantial and seriously prejudicial” and a direct product of the State evading its burden to pursue the matter by “shifting the burden” to the appellant.

Appellant places great import upon Article IV, Section 15 of the Maryland Constitution stressing the following phrase respecting an expeditious hearing on appeal “* * * and all cases shall stand for hearing at the first term after the transmission of the record.” In further support of his contention, appellant culls a statement from dicta in Garcia v. U. S., 10 F. 2d 355 (1926), wherein that court issued a reprimand to the litigants for failing to submit the case for appellate review or in the alternative make a motion to dismiss for want of prosecution for a period encompassing two years and eight months, when it “should have been heard and disposed of as part of the October list, 1923.” The contention that said delay was “substantial and seriously prejudicial” fails to set out any supporting data to substantiate what on the record constitutes a bald allegation. The record reveals that appellant’s appeal was joined with that of Washington and that the time for filing of the brief expired initially on April 3, 1967 and counsel for Washington requested an extension, which was agreed to by stipulation, to May 3, 1967, to June 5, 1967, to June 16, 1967, to July 7, 1967, with the brief being finally filed on August 29, 1967. During this entire period, appellant Anderson neither filed for an extension of time nor filed his brief. Due to illness of appellant’s original appeals counsel, new counsel was appointed on November 14, 1967.

The appellant’s reliance upon Article IV, Section 15, is ill founded since that section was rewritten by the Amendment of 1966 to the Maryland Constitution, ratified on November 8, 1966, deleting the words relied upon. This appeal being filed on December 7, 1966 removes same from the old section. In the face of the record, it is clear that appellant Anderson has only his own acute procrastination to hold accountable for the delay herein involved. ³⁶⁷ Appellant’s second contention is also without merit. Appellant stated below that he did not want to be represented by the court-appointed counsel assigned to him.

The record discloses that appellant asked for and was granted a postponement, ostensibly to secure private counsel, on September 13, 1966, when brought before the court for arraignment. On September 23, 1966, appellant still had not obtained counsel so a not guilty plea was entered by the court, and on October 26, 1966 counsel was appointed. On October 27, 1966, a motion for discovery was filed and trial was held on October 31, 1966. At trial, appellant requested another postponement to secure unknown witnesses, which was denied.

Appellant contended that his court-appointed counsel had only seen him on two occasions and therefore could not be properly prepared to represent him. With respect to the unknown witnesses, counsel had requested their names, but appellant failed to furnish the names and subsequently admitted, at the motion for the new trial, that he did not have any such witnesses. Obviously, a defendant is entitled to employ counsel of his own choice who is willing to take his case so long as he is able to satisfy the fee required. However, a defendant is not entitled, as a matter of right, to employ counsel of his own choice and require the State to pay the fee out of public funds.

Rather, if the defendant is indigent, the court may appoint counsel and such court-appointed counsel is payable by the State. Murray v. Director, 228 Md. 658, 660 , 179 A. 2d 878 (1962). In Woodell v. State, 223 Md. 89, 95 , 162 A. 2d 468 (1960), the Court of Appeals stated: “The relationship of attorney and client can be and, we think, is as effectively established where counsel for an indigent defendant is appointed by the court as where he is employed by a solvent defendant at his own expense.” That Court, at p. 995, went on to further state, by adoption of the views expressed by the Supreme Court of Georgia in Fambles v. State, 97 Ga. 625, at 628 , 25 S. E. 365 (1896). “Attorneys are officers of court, and such officers are presumed to do as the law and their duty require them. ³⁶⁸ When an attorney is appointed by the court to defend a person accused of crime, who is unable to employ counsel, it is his duty to do so; and it is to be presumed that he will discharge his full duty in the premises. It is