Hughes v. State

Lowe, J., delivered the opinion of the Court. The primary question raised by appellant is whether the denial of an oral motion for a trial date change offered on day of trial denied appellant his right to counsel of his own choosing. The question is couched designedly to emphasize what is urged as a denial of a constitutional right, and as well, to permit peripheral arguments to be interwoven as support for his position. One such peripheral contention which might well have given pause independently is that he was improperly denied the right to be present when his attorney addressed the motion for continuance to the administrative judge.

The record indicates that appellant, whose charges included kidnapping and assault with intent to murder, was provided ⁷⁰⁰ a public defender (Earl Carey) whose appearance was entered on May 22,1978, according to the docket of the Criminal Court of Baltimore. Perhaps because Carey also represented a codefendant, the docket entries show that a panel attorney, Michael S. Libowitz, assigned by the Public Defender, entered his appearance on appellant’s behalf on July 7, 1978. On September 13, 1978, the cases of appellant and his codefendant were called for trial. While the court was disposing of preliminary motions (which included a demand for speedy trial) prior to commencing the case, the codefendant personally and vociferously expressed dissatisfaction with his attorney and asked to defer trial in order to obtain new counsel.

Appellant’s attorney then arose and advised the court that on that very morning he had been advised that appellant’s family had contacted private counsel, Mr. Howard Cardin, who had (also that morning) contacted Mr. Libowitz. Mr. Libowitz verified this retention through appellant’s mother and appellant, who indicated a preference “to be represented by Mr. Cardin who is the choice of his family.” Mr. Libowitz then joined the codefendant’s request for postponement, to permit Mr. Cardin to be formally retained and to prepare his case. Because Md. Rule 746 b restricts that decision to administrative judges (or their designees) only, the trial judge proposed to recess the proceedings and permit counsel to journey through the Baltimore City courthouse to Administrative Judge Robert L. Karwacki’s chambers where they could obtain a postponement only if they should convince him that the cause for delay was “extraordinary”. Md. Rule 746 b states: “Upon motion of a party made in writing or in open court and for extraordinary cause shown, the county administrative judge or a judge designated by him may grant a change of trial date.” Before leaving, appellant’s appointed counsel proposed that appellant be permitted to join him.

He did not suggest that appellant could contribute to the deliberation of Judge Karwacki. Instead he rested his demand on the premise that ⁷⁰¹ the right to be present at that stage of the trial was an absolute, presumably because the underlying purpose for which the change of trial date was being sought made it a “critical” stage. “MR. LIBOWITZ: Your Honor, on the record, since — before my client is taken away, I think, as far as my client is concerned, postponement request is certainly a critical stage in the proceedings against him. It has been indicated, the family has indicated that at this time they are financially able to secure private counsel of their own choice and desirous of same.

I would ask that my client be in a position to be present during any postponement request before the administrative judge.” The trial judge declined to decide the presence question and left it to the administrative judge who would decide the ultimate postponement question. The record indicates some concern by the trial judge as to whether the defendant, charged with brutally violent crimes, could safely be transported from area to area in a crowded courthouse. He initially deferred to the security officers, but finally left the decision to the administrative judge. “THE COURT: I’m going to leave that up to the jail guard. MR.

CAREY: I would make the same motion for similar reasons on behalf of my client. THE COURT: I’m going to leave that up to the jail authorities and you may make that request to Judge Karwacki when you appear before him; see what he says.” We are thereafter deprived of any record of proceedings of what transpired before the administrative judge, although his conclusions were reported to the trial judge by the Assistant State’s Attorney. “MR. SEMEL: Your Honor, Judge Karwacki denied the postponement. Mr. Libowitz and Mr. ⁷⁰² Carey and myself met with him about fifteen, twenty minutes ago.

The situation was made known to him. He denied both postponements requests by both Defendants and ordered that the case proceed to trial today. He also denied a motion made by Mr. Carey, Mr. Libowitz to have the Defendants present at the hearing of the request and on the postponement issue.” We can assume the State protested vigorously to Judge Karwacki, opposing this last minute delay just as it had before the trial judge when the issue was first raised, “MR. SEMEL: Your Honor, it’s obvious to the State that both Defendants are employing what I would call dilatory tactics in these particular cases.

Both Mr. Carey and Mr. Libowitz have been in these cases for at least three, four, five months to my knowledge. They have been in communication with me, provided discovery matters, they have been to my office, they’re both fully prepared for trial, everything has been given to them that they asked. The Defendants come in here today and they’re trying to get a delay for whatever reasons they have in their own particular cases. The State has gone to great expense to get this case ready for trial today.

There is an out of state witness flying in from Texas who will be here today. There is [sic] numerous detectives involved in this case, uniformed patrolmen who are all working various shifts, crime lab technicians, at least twenty-twenty-five witnesses, Your Honor. The State would object strenuously to any ridiculous tactic by Defense at this time. Both Mr. Libowitz and Mr. Carey are capable, experienced criminal attorneys and State is prepared to go to trial today and it wants to go to trial today.” but we are faced with a practical dilemma in the absence of a record of what transpired in Judge Karwacki’s chambers.

We do not know whether Judge Karwacki declined to have ⁷⁰³ the defendant present for security reasons, or whether his decision was arbitrary. We do not know what considerations were left before his honor in determining whether extraordinary cause existed under the “facts and circumstances of [this] case.” 1 “Determining what constitutes ‘extraordinary cause’ under Rule 746 is, of course, dependent upon the facts and circumstances of each case.” State v. Hicks, 285 Md. 310, 319 (1979). — extraordinary cause — In the abstract one could hardly argue that a propitious exercise of one's right to counsel may have been cause for delay sufficiently extraordinary to warrant a change in trial date, and sufficiently critical to require the accused’s presence when that determination was made. That an attorney being discharged would be adequate counsel to advocate his own dismissal out of client’s presence and to ask for a postponement to allow his successor to prepare, is reasonably incongruous. But there are other considerations inferably available against which the abstract right-to-counsel argument may fall.

One such consideration involves appellant’s demand for speedy trial that was still pending, as pointed out by the trial judge. This was itself a constitutional right standing in the way of further delay: “I might say to both of these young men, there has been a Motion for Speedy Trial on behalf of both of them. If their cases are postponed, you might have critically affected your rights to a speedy trial, both of you, and you might have some difficulty asserting that you were denied a speedy trial if the case is postponed at your request.” ⁷⁰⁴ Another consideration inferably available is appellant’s timing in his request to change to another lawyer. Appellant had been provided counsel by the State, as noted, obviously pursuant to Md. Rule 723 b 5.

This had to be done at his request and, indeed to qualify, his impecunious status had to be attested by him before a public defender was appointed. At this stage he had asserted his right to counsel and had elected to accept one designated, and paid for, by the State. In such instance a defendant is not entitled to appointment of counsel of his own choice, but only to such counsel as may be assigned. But such appointment, once made at the behest of appellant, fulfilled the constitutional guarantee so long as the counsel assigned afforded appellant a genuine and effective legal representation under all the circumstances of the case.

English v. State, 8 Md. App. 330, 334-335 (1969). At no time did appellant express any dissatisfaction directly or through counsel. He was personally silent throughout, depending on his assigned counsel who was the conveyor of appellant’s preference to defer to his family’s last hour obtainment of private counsel. When a defendant requests and receives appointed counsel and acquiesces in his representation up to the very point of jeopardy attaching, and even then does not object to such representation, his conduct approaches a waiver of the exercise of a preference for another lawyer subsequently selected and paid for by his family.

Cf. Baker v. State, 35 Md. App. 641, 642-643 (1977). Had appellant hired counsel at the inception and continued with him to the trial date, his circumstance would have been the same had he then come in to request postponement to change to another lawyer recommended by his family. This issue then is not whether appellant was denied a right to counsel, or even to counsel of his choice.

Rather the question remains procedural — whether the circumstances are so extraordinary that the trial should be rescheduled to convenience appellant’s belated hindsight. A justifiable substitution of counsel may be accommodated. An initial exercise of one’s right to counsel must be; but here, appellant had already exercised his initial right to counsel; even of his choice, when he chose to accept the public defender. To permit ⁷⁰⁵ a change was, at best, within the statutorily limited discretion of the court.

It is obvious that the merits in the exercise of the discretionary right to deny a continuance to change lawyers are inexorably interwoven with the merits of an accused’s right to be present when the decision is made. Just as the timing of the request may inferentially cause suspicion of the real purpose {i.e., that appellant is using it as an “artifice or stratagem” to delay trial, see Brown v. State, 27 Md. App. 233, 238 (1975)), such timing may for security, or other reasons, foreclose appellant’s right to be present in the absence of a proffer that his presence could contribute to the merits of the motion. Under the limited circumstances available to us in this case, appellant’s requested postponement was a procedural issue involving convenience to appellant. He has not shown that he was threatened with a loss of the right to representation, nor has he shown justification for belatedly changing his selection from a public defender to private counsel at the expense of interrupting the judicial process.

But all of this is speculation upon what Judge Karwacki may have considered. Appellate courts should not so speculate. — burden on appeal — In an unofficial memorandum to prosecutors on “THE EFFECT OF STATE V. HICKS ON THE SCHEDULING AND POSTPONING OF TRIAL, PURSUANT TO MARYLAND RULE 746”, the Attorney General, through his assistant, F. Ford Loker, Esquire, admonished prosecutors to see that, upon requesting delays, a proper record be made for use on appeal. His advice on what constitutes an adequate record is as applicable to defense counsel as to the prosecutors to whom it is addressed: “Establishing an adequate record means producing competent evidence, such as live witnesses and court records, as opposed to mere unstipulated proffers or argument. ⁷⁰⁶ Attorneys cannot afford to articulate arguments for or against a continuance in the judge’s chambers, and forget to repeat their performance on the record.” As we have indicated there is no record here of what transpired before the administrative judge but for the statement of the Assistant State’s Attorney indicating that neither postponement nor right to be present was granted. There is not even a docket entry to show either the