Guarnera v. State

Powers, J., delivered the opinion of the Court. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial. Constitution of the United States, Amendment VI: Declaration of Rights of the Constitution of Maryland, Article 21. We have considered speedy trial rights in numerous cases.

Among the more ⁵⁶⁴ recent are State v. Lawless, 13 Md. App. 220 , 283 A. 2d 160 (1971), cert. denied, 264 Md. 749 , State v. Hunter, 16 Md. App. 306 , 295 A. 2d 779 (1972), State v. Dubose, 17 Md. App. 292 , 301 A. 2d 32 (1973), and State v. Jones, 18 Md. App. 11 , 305 A. 2d 177 (1973). The State as well as the accused has a substantial interest in the prompt resolution of criminal charges. The right is not one-sided. In State v. Dubose, supra, Chief Judge Orth cited and discussed Barker v. Wingo, 407 U. S. 514 , 92 S. Ct. 2182 , 33 L.Ed.2d 101 (1972) where Mr. Justice Powell said for the Court, at 519-20: “The right to a speedy trial is generieally different from any of the other rights enshrined in the Constitution for the protection of the accused.

In addition to the general concern that all accused persons be treated according to decent and fair procedures, there is a societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused. The inability of courts to provide a prompt trial has contributed to a large backlog of cases in urban courts which, among other things, enables defendants to negotiate more effectively for pleas of guilty to lesser offenses and otherwise manipulate the system. In addition, persons released on bond for lengthy periods awaiting trial have an opportunity to commit other crimes. * * * Moreover, the longer an accused is free awaiting trial, the more tempting becomes his opportunity to jump bail and escape. Finally, delay between arrest and punishment may have a detrimental effect on rehabilitation.” The legislative policy of Maryland implementing the constitutional requirement that persons accused of a criminal offense shall be tried promptly was declared by the enactment of the statute codified as Code, Art. 27, § 591, effective 1 July 1971.

After establishing procedure for setting a date for trial § 591 says: ⁵⁶⁵ “The date established for the trial of the matter shall not be postponed except for extraordinary cause shown by the moving party and only with the permission of the administrative judge of the court where the matter is pending.” The Court of Appeals thereafter adopted Maryland Rule 740 which provides that the date of trial and postponements shall be governed by § 591. We held in Young v. State, 15 Md. App. 707 , 292 A. 2d 137 (1972) that the language of the statute was directory, not mandatory, but that from 1 July 1971 forward, the proper procedures to be followed in the granting of all continuances and postponements would be those consonant with § 591. See also State v. Hunter, supra, p. 312-13. The Sixth Amendment also guarantees the right of an accused “to have the Assistance of Counsel for his defence.” The Declaration of Rights recognizes the right “to be allowed counsel.” The right to assistance of counsel has been construed to mean the right to genuine and effective representation.

This right was discussed by Judge Orth (now Chief Judge) for this Court in English v. State, 8 Md. App. 330 , 259 A. 2d 822 (1969). He said, at 334-35: “While an indigent defendant is entitled to the appointment of a counsel to assist him at his trial, see Maryland Rule 719, he is not entitled to the appointment of a counsel of his choice, but only to such counsel as the court may assign. This fulfills the constitutional guarantee so long as the counsel assigned affords the defendant a genuine and effective legal representation under all the circumstances of the particular case.” We further said, at 336: “Of course, an accused may competently and intelligently waive his constitutional right to assistance of counsel. See United States v. Wade, 388 U. S. 218, 237 , citing Carnley v. Cochran, 369 U. S. 506 . ‘The Constitution does not force a lawyer ⁵⁶⁶ upon a defendant.’ McCloskey v. Director, 245 Md. 497, 503 .” With this legal and philosophical backdrop we consider the appeal of Salvatore J. Guarnera from judgments of conviction in the Criminal Court of Baltimore on several narcotics charges.

Trial was held before Judge Robert B. Watts, without a jury. Appellant asserts no error in the trial itself. He says primarily that the court erred in refusing to grant a continuance to enable him to retain a private attorney, thereby denying him the right to effective assistance of counsel, and secondarily that the court erred in denying his motion to suppress evidence seized in the execution of a search warrant. Appellant was arrested in Baltimore on 9 August 1972 on a series of warrants charging violations of the narcotics laws.

Bail was set on each charge, and it appears that appellant was held in jail. At a proceeding in the District Court on 30 August he was held for action of the grand jury, and was committed in default of bail. The docket of the Criminal Court of Baltimore opens with an entry, 30 August 1972, “Commitment filed Jail.” On 3 November 1972 an indictment containing 11 counts was filed, charging appellant with possession of several different controlled dangerous substances and of controlled paraphernalia. On 21 November 1972 Judge Sodaro heard an application for bail reduction, filed by appellant in proper person.

Bail theretofore set in amounts aggregating $27,000 was reduced to $10,000. A corporate bond in the reduced amount was filed on 4 December 1972, and appellant was released. On 6 December 1972 the clerk docketed the appearance of an appointed Public Defender as counsel for Guarnera. The appearance was in the form of a copy of a letter sent on 4 December by the District Public Defender to Frank Cannizzaro, a member of the bar, advising him of his appointment, that his appearance could be stricken only by an order of the Chief Judge, and with a postscript, “Please see this man promptly at the City Jail.” ⁵⁶⁷ Appointed counsel, with commendable promptness, filed on 8 December a motion for discovery and inspection, and a motion to suppress evidence because the search and seizure was illegal.

The State answered the motion for discovery and inspection on 19 January 1973. The next docket entry, 29 January 1973 says: “Arraigned and Pleads: Not Guilty.” There is no transcript of that arraignment, and no indication of who was present. A summons form in the record indicates that some witnesses, as well as appellant, were summoned to appear in court on 29 January. It shows service on appellant “c/o Bondsman.” Another column of the same form was used for 28 March 1973, which was the day of the trial.

Other facts material to this appeal must be gleaned from one exhibit and from the transcript of what was said by the appellant, his assigned trial counsel, the Assistant State’s Attorney, and Judge Watts on the day of trial and at the hearing on 16 April 1973 on a motion for new trial. The exhibit, filed by the appellant, was a letter dated 5 February 1973 to him from the office of the Public Defender requesting him to contact the office immediately for another interview to determine whether representation by the office should continue, since it had come to the attention of the office that he had been released on professional bail and was gainfully employed. When the case was called for trial on 28 March 1973 before Judge Watts, Guarnera personally entered a plea of not guilty and elected to be tried by the court. Mr. Cannizzaro spoke to the court, referred to his appointment as counsel, and said: “Thereafter we had some considerable difficulties getting together, and both the client and myself, and the Public Defender’s Office.

I am respectfully suggesting today to the Court that as of this time right now I don’t feel that I am fully and properly prepared to defend a case of this nature for this reason. Mr. Guarnera was out on professional bail when I was asked to represent him, and still is.” ⁵⁶⁸ Judge Watts said, “You have to see Judge Foster. * * * It’s not my decision.” Counsel explained that he had addressed a letter to Guarnera as long ago as February 14th, telling him the date the case was scheduled for trial, but had heard nothing from him. Guarnera advised the court that he thought Mr. Cannizzaro was going to represent him, and when he got a notice from the Public Defender’s office, he panicked. He said he wanted to dismiss Mr. Cannizzaro because he was not prepared, and that he was trying to get money together to hire a lawyer of his own choice.

Mr. Cannizzaro pointed out that Guarnera had just told him there were witnesses that he didn’t know existed. The Assistant State’s Attorney contended that the attempt to change attorneys was a delaying tactic, and said he_ had been in contact with Mr. Cannizzaro, who had been very diligent in efforts to locate Guarnera, and had sent numerous letters, with copies to the State’s Attorney’s office. Judge Watts directed both counsel and Guarnera to see Chief Judge Dulany Foster, who is administrative judge of the eighth judicial circuit. Upon returning to the courtroom, counsel advised Judge Watts that they had explained the situation to Judge Foster, who directed that the trial proceed, with no postponement or continuance.

Mr. Cannizzaro protested his position, said that he was not prepared, and that he did not want to participate in the case. Guarnera said that he would rather hire a lawyer, because he didn’t think his counsel was prepared to handle the case. The Assistant State’s Attorney stated that Guarnera had hired a private attorney to get his bail reduced, and had put up the money for the bail. He said: “The Court will be made part of a great hoax if it allows this defendant to now claim that his lawyer is not prepared, and he had ample time to talk with his lawyer, and his lawyer did everything possible to contact him and prepare the case.” Guarnera said that he received counsel’s letter notifying him of the trial, and also said that he didn’t find out until ⁵⁶⁹ Friday (March 23rd) that he was supposed to go to court.

He said the bondsman “and the lawyer that handled the case” called him. When Judge Watts asked him what he had done since Friday Guarnera said he tried to borrow money. Guarnera told the judge that he had witnesses he wanted to call, and they were readily available. It was developed that the purpose of calling the witnesses was to present evidence that the officers who executed the search warrant handcuffed Guarnera and beat him up.

The judge stated that he would start the case, and suggested that he would suspend early so the witnesses could be summoned in for the next morning. There was further colloquy about witnesses, and Guarnera’s wish to hire his own lawyer. Much more was said, including another trip to see Judge Foster, with the same result. Before commencing the trial, Judge Watts summed up the problem.

He said: “ * * * we have problems of a man coming in the day of trial and saying, I don’t want this lawyer. I want a chance to get another lawyer, and we have the same problem like this, where a man says, I want my own lawyer. I didn’t get enough money, and I think up to now we have been pretty much postponing them. I say now that it has been advocated that unless the State can show a severe hardship, and very great detriment, that [there would be] lost witnesses, all of that type of thing, I think it might be grounds for reversal on effective representation of counsel, or selection of own counsel, and all of the rest of it.

I was apprehensive about it. “Somewhere along the line, Mr. Cannizzaro, we are all part of the system. We are going to have to answer the question. This might be a good case to do it with. “At the same time the thing that upsets me and ⁵⁷⁰ why I think this might be a good test case, I think it is shown to me that he has been completely negligent in not at least, since he had one lawyer that he didn’t have to pay, [in] preparing his trial so that at least he would have had a lawyer then. Letting you know if he ever got the funds he was going to get his own lawyer, wre wouldn’t be in this.

He didn’t answer any of your letters. All of that is against him, and, of course, in that sense I suppose there is some argument for forcing him to trial today, but so I think what we’ll do, is go on with the trial and hopefully it might be a good test case, if there is a conviction, because I think the Court of Special Appeals, or somebody, or maybe wre’ll come up with a Bench rule, or maybe the Chief Judge would establish a rule that