Billings v. State

³³ Orth, J., delivered the opinion of the Court. The Court of Appeals and this Court have consistently held that ordinarily there is no constitutional right to the assistance of counsel at a preliminary hearing as conducted in Maryland. Evans v. Warden, 240 Md. 833 ; Mercer v. State, 237 Md. 479 ; Fabian v. State, 235 Md. 306 ; Coleman v. State, 8 Md. App. 65 ; Crumb v. State, 1 Md. App. 98 . In so holding it was recognized that a person accused of crime “requires the guiding hand of counsel at every step of the proceedings against him”, Powell v. Alabama, 287 U. S. 45, 69 , and that “it is central to that principle that in addition to counsel’s presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate from the accused’s right to a fair trial”, United States v. Wade, 388 U. S. 218, 226 .

A preliminary hearing is not a required step in a Maryland prosecution; the prosecutor may seek an indictment directly from the grand jury without a preliminary hearing. Clemons v. State, 9 Md. App. 127 ; Fabian v. State, 3 Md. App. 270 . The primary purpose of a preliminary hearing in this jurisdiction is to determine whether an offense has been committed, and, if so, whether there is probable cause for charging the accused with that offense, that is whether he is to be held for action of the grand jury. Mason v. State, 2 Md. App. 768; Timbers v. State, 2 Md. App. 672.

Thus we have not considered it to be such a critical stage of the proceedings as to require the assistance of counsel in the normal course of events. But we followed the dictates of White v. Maryland, 373 U. S. 59 , so that disclosures of an uncounseled person at a preliminary hearing may not be used against him if he is later tried. Butina v. State, 4 Md. App. 312 . And see Pointer v. Texas, 380 U. S. 400 .

On 22 June 1970 in Coleman and Stephens v. State of Alabama, 7 CrL 3121, a majority of the Supreme Court held that a preliminary hearing in Alabama, so compa ³⁴ rabie in conduct and purpose as to be in effect indistinguishable from a preliminary hearing in Maryland, was a critical stage of the State’s criminal process at which an accused is as much entitled to such aid of counsel as at the trial itself. At 3124. Mr. Justice Brennan announced the judgment of the Court and delivered an opinion. Mr. Justice Douglas, Mr. Justice White and Mr. Justice Marshall joined in the part of the opinion concerning the preliminary hearing.

The Chief Justice and Justices Douglas, Black, White, Harlan and Stewart each wrote an opinion. Mr. Justice Douglas added a word as to why he thought a strict construction of the Constitution required the result reached. At 3124-3125. Mr. Justice White felt that “recent cases furnish ample ground for holding the preliminary hearing a critical event in the progress of a criminal case.” At 3126.

Mr. Justice Harlan was “constrained to agree with the Court’s holding that petitioners’ constitutional rights were violated when Alabama refused to appoint counsel to represent them at the preliminary hearing.” At 3128. Mr. Justice Black “wholeheartedly” agreed “with the Court’s holding * * * that an accused has a constitutional right to the assistance of counsel at the preliminary hearing which Alabama grants criminal defendants.” At 3125. Mr. Justice Stewart said he would hold “that the absence of counsel at the preliminary hearing deprived the petitioners of no constitutional rights.” At 3130. He felt that the preliminary hearing was a critical stage only if incriminating statements made by the petitioners at the preliminary hearing had been used by the prosecution at the trial, citing White v. Maryland, supra, or if the prosecution had used the statement of any other witness at the preliminary hearing against the petitioners at their trial, citing Pointer v. Texas, supra.

The Chief Justice took a middle ground. He found no requirement for the assistance of counsel as constitutionally demanded because a preliminary hearing is a “criminal prosecution” but agreed that “as a matter of sound policy counsel should be made available to all persons subjected to a preliminary hearing and that this ³⁵ should be provided either by statute or by the rule making process.” (emphasis in original) He joined the opinion of Mr. Justice Stewart. At 3126. So a majority of the Court consider the assistance of counsel at a preliminary hearing such as provided in Alabama (and Maryland) as constitutionally mandated.

If an accused does not have the assistance of counsel at a preliminary hearing and has not effectively waived the right, the test to be applied, according to the Brennan opinion, “is whether the denial of counsel at the preliminary hearing was harmless error under Chapman v. California, 386 U. S. 18 .” At 3124. But again the Court leaves unanswered the question of the application of the rule it enunciated. And again we are obliged to determine whether the rule we must follow is to have only prospective application or if it is to be retroactively applied, and if so, to what extent. We hold that the rule that an accused has a constitutional right to the assistance of counsel at a preliminary hearing applies only to cases in which the preliminary hearing was held on or after 22 June 1970, the date Coleman and Stephens v. Alabama, supra, was decided.

In so holding we point out that “in criminal litigation concerning constitutional claims, ‘the Court may in the interest of justice make the rule prospective * * * where the exigencies of the situation require such application’ * * Johnson v. New Jersey, 384 U. S. 719, 726-727 . “The criteria guiding resolution of the question implicates (a) the purpose to be served by the new standards, (b) the extent of reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.” Stovall v. Denno, 388 U. S. 293, 297 . The Court said in Johnson at 728: “[T]he retroactivity or nonretroactivity of a rule is not automatically determined by the provision of the Constitution on which the dictate is based. Each constitutional rule of criminal pro ³⁶ cedure has its own distinct functions, its own background of precedent, and its own impact on the administration of justice, and the way in which these factors combine must inevitably vary with the dictate involved.” It is clear from Stovall v. Denno, supra, that the constitutional right to counsel, although retroactively applied with respect to the trial itself, Gideon v. Wainwright, 372 U. S. 335 and with respect to appeal, Douglas v. California, 372 U. S. 353 , is not necessarily to be so applied with respect to all critical stages of the prosecution. United States v. Wade, supra, held that a lineup was a critical stage of the proceedings against an accused; therefore the assistance of counsel at a lineup was constitutionally required.

But Stovall held that the exclusionary rules which come into play when counsel is not present at a lineup are only to be applied to cases which involve confrontations for identification purposes conducted in the absence of counsel after the date of the Wade and Gilbert v. California, 388 U. S. 263 decisions,