Baldwin v. State

Wilner, J., delivered the opinion of the Court. In May, 1978, a two-year investigation by State and Federal authorities culminated in the issuance and execution of search warrants for the Atlantic Glass Factory in Easton (Talbot County) and a farmhouse located on Route 662 in Kent County. Among the items found and seized during the raids was a large quantity of Phencyclidine, a controlled dangerous substance (CDS). On July 12, 1978, an eight-count criminal information was filed against appellant in the Circuit Court for Talbot County, charging him, at each of the two locations, with (1) unlawfully possessing a CDS (Phencyclidine) in sufficient quantity to indicate an intent to manufacture, distribute, and dispense the same; (2) manufacturing a CDS (Phencyclidine); (3) possession of machines, equipment, and implements adapted for the production of a CDS; and (4) maintaining a common nuisance.

See Md. Code art. 27, § 286 (a) (1), (4), and (5). Following a variety of pretrial motions, including motions to suppress evidence seized in the raids, appellant was tried before a jury in the Circuit Court for Cecil County, to which the case had been removed because of prejudicial pretrial publicity. After three days of trial, appellant was convicted on seven of the eight counts, 1 for which he was sentenced to a total of thirty-five years in prison (seven of which were suspended) and fined $105,000. On appeal we reversed the convictions, concluding that the motions to suppress the evidence seized in the raids should have been granted.

Baldwin v. State, 45 Md.App. 378 (1980). The search warrants authorizing the raids were invalid, we said, because they rested upon information ⁵⁴⁰ obtained through illegal wiretaps. We therefore remanded the case for retrial on the seven open counts. The State, disagreeing with our conclusions, sought review in the Court of Appeals.

On March 10,1981, that Court affirmed what we had done, State v. Baldwin, 289 Md. 635 (1981); and on April 13, 1981, the case was returned to the Circuit Court for Cecil County. (Appellant’s petition for writ of certiorari was denied by the Supreme Court of the United States on October 5, 1981. Baldwin v. Maryland, 454 U.S. 852 , 102 S.Ct. 295 (1981). Following our reversal of the initial convictions, while the further appellate proceedings were pending, appellant was released from prison on $100,000 bond.

The bond was secured by property owned by appellant’s parents and was conditioned upon appellant residing with his parents, remaining gainfully employed, and not leaving the State of Maryland. On June 4, 1981, the assignment clerk commenced the retrial process by scheduling an "initial appearance” hearing for June 15. On June 3, 1981, appellant applied to the District Public Defender for representation by his office at the retrial. Although his application is not in the record (being addressed to the District Public Defender), we were told at oral argument that it was on whatever form is required by the Public Defender’s Office and that the information supplied on it was under oath.

That same day — June 3 — the District Public Defender declined representation on the basis that the appearance of private counsel had been entered for appellant and that the court had refused to permit that attorney to withdraw. By June 5, that condition had changed. For reasons not clear in the record, private counsel withdrew his appearance. Notwithstanding that appellant was then without counsel, the District Public Defender continued to decline representation.

On June 5, he wrote to appellant: "Your Application indicates that you are released on bail of $100,000. This indicates that you not only have resources, but resources of a most sub ⁵⁴¹ stantial kind. In addition, it appears that you have a college education and no personal living expenses. Under those circumstances, and because your trial has been postponed from June 15, 1981, we believe that you do not qualify for representation under the criteria established in Article 27A of the Maryland Code.” As directed, appellant appeared before the court on June 15,1981, for his initial appearance.

Because he was without counsel, the court went through the litany required by Maryland Rule 723, informing appellant (among other things) that he had a right to a lawyer, that a lawyer could render important help to him, and that if he was "too poor to hire a lawyer,” he could apply to the Public Defender. 2 Aware of whát had already occurred, the court then, at appellant’s request, agreed to determine "if the Court will give you a free lawyer, even though the Public Defender does not.” The court’s inquiry was conducted in an informal manner, with appellant and the District Public Defender simply stating their respective positions. Neither of them testified under oath and no independent evidence was offered. Appellant spoke first. Recounting the history of his case, he represented that he still owed money to his former trial and appellate counsel and that he did not "have any money to hire an attorney.” Appellant also proffered that former trial counsel wanted a $20,000 retainer to conduct his ⁵⁴² defense at retrial and that two local attorneys, who "really didn’t want to handle the matter,” had informed him that "it would be very expensive to hire another lawyer in.” In response, the District Public Defender related for the court the pertinent parts of appellant’s application for appointed counsel.

Appellant had represented, he said, that until two months before he had been taking home $2,000 per year as a freelance photographer; that "[h]e had no other income, no bank accounts”; "that the only cash that he had was $2.20”; "that he owned no motor vehicles or stocks or bonds”; that he was not owed any money; that his father was in the electrical business and his mother was a school teacher; that he owed money to his former attorneys and to his parents; that he was free on a "$100,000 property bond, which : . . had been posted by his parents”; and that "he had completed sixteen years of school.” He then gave his reasons for denying representation: "[F]irst of all, our department or agency ... is severely limited in its resources. . . . [I]t is extremely important that we use great care in assigning lawyers . . . and it was our feeling in this case that Mr. Baldwin ... is most able and articulate.... [H]e’s been out on a $100,000 bail since last summer. He has no living expenses. It would certainly seem to me that. . . there’s little if any reason why he can’t go out and hire his own lawyer. There certainly are jobs available.

Secondly, it seems to me that a $100,000 bail . . . that anybody who has that kind of resources, it certainly indicates that there’s more there. ... I was indeed overwhelmed when I read the Daily Record and saw . . . [t]here are six individual appearances and three separate law firms . . . listed... as having appeared on behalf of Mr. Baldwin [on appeal], ... I am certain that those fees were not inexpensive. . . . [I]t just seemed to me that we should not deploy our forces.. . because Mr. Hartman [sic, Baldwin]... is perfectly able to obtain counsel himself.” ⁵⁴³ The court then noted, sua sponte, that "[f]urther evidence of the economic status of the Defendant” could be derived from a consideration of the items seized in the raids conducted in May, 1978, which included some $17,000 in cash, promissory notes with an aggregate face value of $105,000, three boat titles, and a savings account passbook which appellant held "in conjunction with Shirley Baldwin, apparently the Defendant’s mother.” 3 Although recognizing that "if assignment of counsel is based entirely upon liquidity and immediately available resources . . . the Court would be correct in assigning you counsel free of charge,” the court nonetheless stated that it could not "remain oblivious and blind to circumstances and facts from which we can infer an ability to pay for representation.” Adopting what was essentially the Public Defender’s line of reasoning, the court thereupon declared appellant ineligible for appointed counsel. It stated that it could not ignore, (1) "the status of the family . . . the fact that when the Court set bail upon remand of the case, bail was posted almost immediately in the sum of $100,000”; (2) "the potential of a college graduate to earn a living, for all it appears the Defendant is living with his parents essentially expense-free”; (3) "the Public Defender budget having been slashed from one and a quarter million to eight-tenths of a million dollars”; and (4) "that this Defendant has been represented by three law firms in the past in this case in court.” In conclusion, the court stated: "The Court notes that the representation of the Defendant as to his entitlement to counsel free of ⁵⁴⁴ charge was limited to the fact that he still owes other attorneys, and that one particular firm would want a $20,000 retainer to represent him.

That his, extent of his contact with any other counsel has been, according to his testimony, with two Kent County lawyers who said representation would be expensive. But this was a generalization where there was no specific look at the case to see what was involved or what the fee might be. And it is for all these reasons that the Court, consistent with the decision of the Public Defender in this case, denies the petition of the Defendant for a court appointed counsel free of charge, and will require the Defendant to provide his own legal representation or, at his option, to proceed without counsel.” Trial was set for July 29, 1981 — six weeks hence. When it commenced, appellant was still without counsel.

Once again, he asserted his inability to afford private counsel. In a typed statement, admitted as a court exhibit, appellant advised the court: "I have no financial resources with which to hire an attorney and because the Court refuses to appoint me an attorney, I am without an attorney today.... The bond I am now on is a Property Bond which resulted from my parents putting up their house and property as collateral. My parents are unable to assist me financially in terms of hiring an attorney, I do not have any sevings [sic] to hire an attorney and any possible financial assets I do have claim to are in the possession of the Maryland State Police, who refuse to release such to me.... ...

I am completely unable to prepare my case for trial. I am not in any way, shape or form capable to represent myself in this case especially taking into account the complexities of this case such as wiretap orders, search warrants, and other tech ⁵⁴⁵ nical legal issues. Because I do not know what to object to or what to say during a trial what evidence is admissible and what evidence is not admissible and how to ask questions of witnesses or for that matter how to even summons witnesses, I must again . . . request the Court to appoint me an attorney. . . .” Nonetheless, finding that there had been "no change in circumstances since the last ruling ...,” the court denied appellant’s motion and proceeded to conduct the retrial without defense counsel. Other than appellant’s repeated protestations that he was "not competent to defend” himself and that he objected "to these entire proceedings,” he took no part in the trial, presented no evidence in his defense, and did not cross-examine any of the State’s witnesses.

From his conviction on four of the remaining seven counts, 4 for which he was sentenced to a total of twenty years imprisonment (four years of which was suspended), $60,000 in fines, and five years probation, appellant noted this appeal, contending that "The trial court abused its discretion, and thus denied [him] rights secured ... by the Sixth and Fourteenth Amendments of the Constitution of the United States, Article 21 of the Maryland Declaration of Rights, and Md. Code Anno., Article 27A, § 6 (f), in finding him not to be indigent and therefore not to be entitled to the appointment of counsel at public expense.” Finding merit in his contention, we shall reverse the judgment of the court below and remand this case for yet another retrial. ⁵⁴⁶ I. The Right to Counsel Unlike some of the other hallmarks of what we now regard as due process of law, the right of an accused to the assistance of counsel is of relatively recent origin. It did not come to us through the common law of England. Under early English common law, persons accused of felony were not permitted the assistance of counsel at trial. Even by the end of the Eighteenth Century, that prohibition had been relaxed only to the point of allowing the full participation of counsel in cases of high treason (or misprision thereof), and of permitting counsel to instruct a defendant as to points of law in other felony cases.

See, in general, 4 Blackstone, Commentaries On The Laws Of England, ch. 27, 355-56 (Hammond ed. 1890); Plucknett, A Concise History Of The Common Law, 434-35 (5th ed. 1956); and compare Raymond v. State ex rel. Szydlouski, 192 Md. 602, 606 (1949). Immediately upon Independence, Maryland abrogated whatever was left of the common law exclusion of counsel by inserting into its first Constitution, as part of art. 19 of the Declaration of Rights (1776) that "in all criminal prosecutions, every man hath a right ... to be allowed counsel.” Fifteen years later, a similar right was engrafted onto the Federal Constitution as part of the Sixth Amendment — that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” For about 150 years, these Constitutional provisions were construed literally and narrowly. They afforded a defendant the right to have counsel if he could obtain counsel; but they did not require the participation of counsel, and they did not obligate the body politic to provide counsel for indigent defendants.

See Raymond v. State ex rel. Szydlouski, supra, 192 Md. 602 , so interpreting the Maryland provision; also Marvin v. Warden, 212 Md. 634 (1957); Wilson v. State, 284 Md. 664, 669 (1979). The first major change in that thinking seemed to come with Johnson v. Zerbst, 304 U.S. 458 (1938), where, as characterized later in Betts v. Brady, 316 U.S. 455 , 464-65 ⁵⁴⁷ (1942), the Supreme Court construed the Sixth Amendment right "to require appointment of counsel in all cases where a defendant is unable to procure the services of an attorney, and where the right has not been intentionally and competently waived.” 5 As Betts v. Brady made clear, however, the Sixth Amendment right of counsel applied only to Federal prosecutions. It was not to be regarded as a "fundamental right, essential to a fair trial,” and thus available to defendants in State prosecutions under the "due process” clause of the Fourteenth Amendment.

Id. at 471 . Thus it was that, except in such egregious situations as spawned Powell v. Alabama, 287 U.S. 45 (1932), for example, the appointment of counsel for indigent defendants in State prosecutions remained a matter of legislative policy for the States, most of which, as the Betts Court noted, empowered their courts to appoint counsel "where that course seems to be required in the interest of fairness.” 6 Id. at 472 . ⁵⁴⁸ The "matter of grace” theory ended on March 18, 1963, when in Gideon v. Wainwright, 372 U.S. 335 (1963), the Supreme Court expressly overruled Betts v. Brady and concluded that the Sixth Amendment right to counsel, as explicated in Johnson v. Zerbst, supra, applied with full force to State prosecutions through the "due process” clause of the Fourteenth Amendment. The right of an indigent defendant in State court to appointed counsel had been "Constitutionalized.” The immediate response to Gideon was a change in Maryland Rule 719 b (see footnote 6, ante) to require the appointed of counsel for any accused "who is not financially able to obtain counsel [and who] requests assignment of counsel” in any case in which the charge carried a maximum penalty of six months or more imprisonment or a fine of $500 or greater. A secondary response was a growing interest in the creation of a public defender system as an alternative to individual court appointments.

Consideration of a public defender system gained momentum as the Supreme Court began to broaden the right to counsel beyond the trial itself, extending it further back into the pretrial investigatory and accusatory processes. 7 ⁵⁴⁹ The ultimate progenitor of a Statewide public defender system in Maryland, however, appeared to be Coleman v. Alabama, 399 U.S. 1 (1970), wherein the Supreme Court extended the Sixth Amendment right to counsel to preliminary hearings. That called directly into question the ability of the State to comply with its expanding Constitutional obligations, especially in the large metropolitan areas, solely through a system of court-appointed counsel. 8 It culminated in the enactment of art. 27A by the 1971 General Assembly, creating a Statewide public defender system. The new system made at least two significant changes from that which it replaced: (1) it was to be administered primarily by an Executive official -— the Public Defender — rather than by the individual trial and appellate courts throughout the State; and (2) whereas court appointments under the old system were paid for primarily by the counties (and Baltimore City), the new program was to be entirely State-funded through the Public Defender’s budget. Those changes prompted the Legislature to develop some standards for the program — criteria for determining eligibility for the appointment of counsel at public expense.

Under the old system, there were no clear and universal criteria; with some exceptions, judges considering the appointment of counsel apparently used whatever standards they thought appropriate, and it does not appear that their determinations in that regard were ever disturbed on appeal. 9 ⁵⁵⁰ The Legislature made clear in the very beginning of the new law (art. 27A, § 1) that its purpose was to implement the underlying Constitutional mandate — "to provide for the realization of the constitutional guarantees of counsel in the representation of indigents ... in criminal and juvenile proceedings within the State....” It did this primarily by creating the office of Public Defender (§ 3) and stating that it was his "primary duty ... to provide legal representation for any indigent defendant, eligible for services under this article.” (§ 4 (a); emphasis supplied.) It is, to some extent, unfortunate that the Legislature used both terms, "indigent” and "eligible,” because in the context of their use, there appears to be some overlap. "Indigent,” as a noun, is defined in § 2 (f) as meaning, "any person taken into custody or charged with a serious crime . . . who under oath or affirmation subscribes and states in writing that he is financially unable, without undue hardship, to provide for the full payment of an attorney and all other necessary expenses of legal representation.” 10 Under that definition, a person is not an "indigent” by reason of what he is, but by reason of what he says he is. The real key to determining indigence (eligibility) is stated in § 7(a): "Eligibility for the services of the Office of the Public Defender shall be determined on the basis of the need of the person seeking legal representation. ⁵⁵¹ Need shall be measured according to the financial ability of the person to engage and compensate competent private counsel and to provide all other necessary expenses or