Bigley v. Warden

Gilbert, J., delivered the opinion of the Court. The sole question presented by this case is the refusal of the trial court to release on bail, after conviction, two persons who had noted appeals to this Court. Patricia Ann Bigley and Tyrone Earl Fleming, applicants, were both convicted in the Circuit Court for Baltimore County on May 16, 1972, of two violations of the narcotic laws of this State. Each was sentenced to a total of six years imprisonment by Judge Kenneth C. Proctor.

Immediately following the sentencing, counsel for Bigley and Fleming requested the trial judge to “consider setting an appeal bond.” The request was denied. Subsequently, on June 1, 1972, an “application for bail” on behalf of applicants was heard, considered, and denied by Judge Proctor. Thereafter, applicants sought relief in the Court of Appeals of Maryland from the denial of bail. That Court, on June 30, 1972, dismissed the application, stating: “* * * [T]he motion to dismiss of the State of Maryland * * * is hereby, granted, without prejudice * * * to [applicants] to reapply for a writ of habeas corpus directed to the granting of bail by the Circuit Court for Baltimore County and, in the event of further denial of bail, to apply immediately to the Court of Special Appeals for leave to appeal from the refusal of such relief as provided in Article 42, Section 20 of the Maryland Code, as added by Chapter 392 of the Laws of 1972, * * *.” In accordance with the Order of the Court of Appeals the matter was again heard before Judge Proctor on July 5, 1972, who filed a written opinion which states in part: ⁴ “These two [applicants] have no real roots in this State.

In the past several years, they have spent a great portion of their time in California and traveling back and forth between Maryland and California. The Federal Bureau of Investigation and the Maryland State Police both have substantial books on these [applicants] indicating that they are heavily involved in the drug traffic. As a matter of fact, since the imposition of sentence, new indictments have been filed against each of these [applicants].” 1 Bail was again denied. An application for leave to appeal was expeditiously filed with this Court.

Ch. 392, § 1, [1972] Md. Laws 2 provides: “A person who has sought habeas corpus relief either from the refusal of a judge to admit him to bail or from the judge’s determination requiring an allegedly excessive bail, either prior to trial or at any time following conviction, but prior to final judgment, may apply to the ⁵ Court of Special Appeals for leave to appeal from the refusal by such judge to issue the writ of habeas corpus applied for or to grant the relief sought in the writ. An application for leave to appeal shall be filed within ten days of the denial or grant of habeas corpus relief, and shall contain a brief statement of the reasons why the order of the lower court should be reversed or modified. The record on the application for leave to appeal shall contain a copy of the habeas corpus petition, any answer thereto filed by the State, the order of the court, and any memorandum of reasons issued by the judge. The application shall [not] include a transcript of any proceedings conducted incident to the habeas corpus petition unless the application for leave to appeal is granted, in which event the court may order the preparation of a transcript of any proceedings related thereto.

The Court of Special Appeals may deny the application for leave to appeal or, if it grants the same, may affirm, reverse, or modify the judgment of the lower court granting or denying the relief sought by the writ. In the event the Court of Special Appeals determines that the lower Court’s judgment was wrong in refusing to admit to bail, or in setting the amount of the bail, it may, in acting upon the application for leave to appeal, determine the amount of bail which would be proper and its determination in this regard shall be binding on the lower court, until and unless a change of circumstances warrants a different decision. There shall be no right to apply for certiorari to the Court of Appeals from the action taken by the Court of Special Appeals on the application for leave to appeal.” 2a ⁶ Immediately prior to the enactment of this provision, no right of appeal existed from a denial of a habeas corpus petition claiming a constitutional right to bail, or asserting that an amount of bail was constitutionally excessive. Hudson v. Superintendent, 11 Md. App. 253 , 273 A. 2d 470 (1971). ' The record submitted to this Court manifests that subsequent to the initial arrest of the applicants on October 8, 1971, on the charges of which they were convicted on May 16, 1972, Fleming was indicted on February 28, 1972 on the additional charge of conspiracy to violate the “controlled dangerous substance laws” allegedly committed prior to October 8, 1971.

That indictment has not been tried. Both applicants, presumably while on bail, were arrested on March 3, 1972. As a result of that arrest both were indicted on July 3, 1972 for maintaining a common nuisance in violation of Md. Ann. Code art. 27, § 286, and for conspiring to violate Md. Ann. Code art. 27, §§ 276 to 302. Applicants urge us to adopt the rationale of Harris v. United States, 92 S. Ct. 10 (Douglas, Circuit Justice, 1971).

We decline to do so. There, Mr. Justice Douglas considered an application for bail pending appeal. Both the District Court and the Ninth Circuit Court of Appeals had denied the application. Harris, a self-employed auto mechanic, earning $150.00 per week, was convicted of violation of narcotic laws.

He had lived in Los Angeles for eight years and had relatives, including his mother and sister, living there. He had never failed to make court appearances as required while on bail, including appearances after conviction and sentencing. Justice Douglas said in granting the application: “While there is no automatic right to bail after convictions, Bowman v. United States, 85 S. Ct. 232 , 13 L.Ed.2d 171 (1964), ‘The command of the Eighth Amendment that “Excessive bail shall not be required * * *” at the very least obligates judges passing on the right to ⁷ bail to deny such relief only for the strongest reasons.’ Sellers, [v. United States] 89 S. Ct. [ 36 ] at 38 [ 21 L.Ed.2d 64 (1968)].” * * * “Where an appeal is not frivolous or taken for delay, bail ‘is to be denied only in cases in which, from substantial evidence, it seems clear that the right to bail may be abused or the community may be threatened by the applicant’s release.’ Leigh v. United States, 82 S. Ct. 994 , 996, 8 L.Ed.2d 269 (1962).” Aside from our belief that Harris is factually inapposite to the instant case, we observe that Harris is not the opinion of the Supreme Court, but rather that of an individual member of that Court. Although Mr. Justice Douglas’s individual opinion is entitled to respect, it is not binding upon us.

Here, there is a showing of some “roots” attaching applicants to the community. Both applicants were living and employed in the area and “their closest living relatives” are in Baltimore. Overriding the averred community attachments, in this case, however, is the alleged involvement of the applicants with the illegal drug racket. The probation report, relied upon by Judge Proctor, contains the “substantial evidence” necessary to justify the denial of bail.

We note also that the Maryland State Police regard both applicants “to be major narcotics distributors in and about the Baltimore area and that they are known to associate with other major Baltimore drug distributors.” 3 It has been held that a judge in imposing sentence “* * * may, within his broad discretion, consider information concerning a defendant’s reputation, prior record, general health, morals, mentality and social background in determining the type of sentence which should be imposed * * Mahoney v. State, 13 Md. App. 105 , 281 A. 2d 421 (1971). The Supreme Court in United States ⁸ v. Tucker, 404 U. S. 443 , 92 S. Ct. 589 , 30 L.Ed.2d 592 (1972) said: “* * * [A] judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come. $ * We hold, without limiting the trial court, that those things that a trial judge may contemplate in imposing sentence may also be viewed in the making of a determination, following conviction, whether, vel non, admission to bail is to be allowed. The same process is applicable in setting the amount of the bail. Maryland Rule 777 concerns itself with “Bail.” The rule provides in pertinent part: “a.

Prior to Conviction. Prior to conviction an accused who is charged with an offense the maximum punishment for which is other than capital shall be entitled to be admitted to bail. In a capital case the accused may be admitted to bail in the discretion of the court. b. After Conviction — Pending Sentence or Appeal.

After conviction, pending sentence or appeal, an accused may be admitted to bail in the discretion of the trial court. Trial court shall be defined to mean the judge who presided at the trial subject to Rule 749 (Disability of Judge). c. Amount of Bail After Conviction. The court may require greater bail after conviction pending sentence or appeal than the accused had given before conviction. d.

Refusal or Failure of Bail Pending Appeal — Effect. Pending appeal, if the court in its discretion refuses to admit the accused to bail or the ac ⁹ cused does not furnish bail, the accused shall commence service of his sentence.” The rule divides bail into two categories: (1) an absolute right to bail prior to conviction in all cases except capital offenses, and (2) discretionary admissions to bail, which include capital offenses, appeals and situations where persons have been convicted but not sentenced. We are here primarily concerned with the latter classification, not the former. The Eighth Amendment to the Constitution of the United States provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” This constitutional amendment has been held to be applicable to the several States via the Fourteenth Amendment.

Turco v. State of Maryland, 324 F. Supp. 61 (D. Md. 1971) ; Pilkinton v. Circuit Court of Howell County, Missouri, 324 F. 2d 45 (8th Cir. 1963) ; Mastrian v. Hedman, 326 F. 2d 708 (8th Cir. 1964), cert. denied, 376 U. S. 965 (1964). 4 Maryland has, in Art. 25, Declaration of Rights, substantially adopted the language of the Eighth Amendment. In Turco v. State of Maryland, supra, quoting from Mastrian v. Hedman, supra, it was held: “Neither the Eighth Amendment nor the Fourteenth Amendment requires that everyone charged with a state offense must be given his liberty on bail pending trial. While it is inherent in our American concept of liberty that right to bail shall generally exist, this has never been held to mean that a state must make every criminal offense subject to such a right or that the ¹⁰ right provided as to offenses made subject to bail must be so administered that every accused will always be able to secure his liberty pending trial.” The Supreme Court, in Carlson v. Landon, 342 U. S. 524 , 72 S. Ct. 525 , 96 L. Ed. 547 (1952), upheld the constitutionality of a federal statute that conferred upon the Attorney General the discretionary power to detain alien communists under deportation charges, without bail. Speaking through Mr. Justice Reed, the Court said of the Eighth Amendment: “The bail clause was lifted with slight changes from the English Bill of Rights Act.

In England that clause has never been thought to accord a right to bail in all cases, but merely to provide that bail shall not be excessive in those cases where it is proper to grant bail. When this clause was carried over into our Bill of Rights, nothing was said that indicated any different concept. The Eighth Amendment has not prevented Congress from defining the classes of cases in which bail shall be allowed in this country. Thus in criminal cases bail is not compulsory where the punishment may be death.

Indeed, the very language of the Amendment fails to say all arrests must be bailable. * * *” Jones v. United States, 12 F. 2d 708 (4th Cir. 1926), relied upon by applicants, holds: “Generally speaking, it may be said that, in an ordinary criminal case, other than for a capital offense, an accused, after as well as before conviction, and pending the consideration of the final hearing of his case in the appellate courts, is entitled to bail. There may be unusual cases, arising either