In Re Appeal No. 101, Term 1976

Powers, J., delivered the opinion of the Court. In this case, here styled “In re Appeal No. 101 (76) from the District Court of Montgomery County, sitting as a Juvenile Court”, Maryland Rule 1097, we are called upon by the appellant to review the proceedings against him upon a petition which represented to the court that he was a delinquent child. The petition, incorporating by reference an attached count, presented that two other named juveniles and the appellant, on 31 August 1975, unlawfully committed an assault and battery upon a boy whose name was Smith. We shall refer to the other two jointly charged juveniles as LS and WJ.

The petition was filed on 30 October 1975. All three boys appeared on 5 November before a Commissioner of the District Court in Montgomery County, for the purpose of what the Commissioner explained was not a trial, but a preliminary inquiry. He gave each boy a copy of the petition against him, and advised that, “* * * all three of you have formally been charged by the State of Maryland, through the State’s Attorney’s office, with having committed a certain act or certain acts that are defined under the law as a Juvenile Delinquent Act.” Each boy was told, “* * * you have a right to be represented in this matter by an attorney. If you and your parents cannot afford an attorney one will be appointed to represent you.” Each answered that he understood that he had that right.

LS had an attorney, who was present at the inquiry. WJ said he would like to have a public defender. Appellant initially responded that he did not know if he intended to be represented, but appellant’s father told the Commissioner, “He will, yes, sir.” The Commissioner ³ checked a block on a form where the words, “Will engage private counsel” appear. On 5 December 1975 the adjudicatory hearing was held before a judge of the District Court.

Appellant was not represented by counsel. The court adjudicated each of the three boys to be delinquent. After a disposition order was entered as to appellant on 5 January 1976, this appeal was noted. Errors asserted are: 1.

Acceptance of appellant’s waiver of representation by legal counsel at the adjudicatory and disposition hearings without making the required inquiry. 2. Denial of the right of confrontation and cross examination by permitting a police officer to testify to statements made to him by the non-testifying co-respondents. 3. The legally admissible evidence was not sufficient to permit an adjudication of delinquency. Waiver of Right to Counsel At the outset of the adjudicatory hearing the judge noted that respondent LS was represented by counsel.

He then spoke to the others. The transcript, with names deleted, and with a correction agreed to by stipulation, reads: “THE COURT: [WJ and his father], appearing before the commissioner you were advised of the charges, and the hearing date and you were referred to the office of the Public Defender. Now, I note that you are here without an attorney which of course, as was explained to you, is not required, but your son does have the right to an attorney. So- [FATHER OF WJ]: He said he didn’t want one.

THE COURT: Pardon me? [FATHER OF WJ]: He said he didn’t want one. THE COURT: He decided he did not want one. [FATHER OF WJ]: Yes, sir. ⁴ THE COURT: You understand you have the right to one, now? [WJ]: Yes, sir. THE COURT: You want to go ahead on the charges today without an attorney? [WJ]: Yes, sir. THE COURT: And how about [appellant]? [FATHER OF APPELLANT]: The same. [APPELLANT]: Yes, sir.

THE COURT: Advice advised. And parents do you agree with this? Do you understand your son has the right to an attorney as I believe was discussed with the commissioner. You indicated, according to his notes, you would engage private counsel.

Have you since changed your mind about this? [FATHER OF APPELLANT]: We did consult private counsel. Although he did not say we did not need an attorney, he did not feel it was all that necessary. THE COURT: So you’re willing, as your son apparently indicates, you’re willing to go ahead without a lawyer today? [FATHER OF APPELLANT]: Exactly. THE COURT: Thank you.” Since In Re Gault, 387 U. S. 1 , 87 S. Ct. 1428 , 18 L.Ed.2d 527 (1967), it has been clear that the Fourteenth Amendment due process clause requires the States to extend the right to counsel to juveniles during delinquency proceedings.

In that case Justice Fortas said for the Supreme Court, at 36: “A proceeding where the issue is whether the child will be found to be ‘delinquent’ and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution. The juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the ⁵ facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it. The child ‘requires the guiding hand of counsel at every step in the proceedings against him.’ ” The Court expressed its ruling on this phase of the case by saying, at 41: “We conclude that the Due Process Clause of the Fourteenth Amendment requires that in respect of proceedings to determine delinquency which may result in commitment to an institution in which the juvenile’s freedom is curtailed, the child and his parents must be notified of the child’s right to be represented by counsel retained by them, or if they are unable to afford counsel, that counsel will be appointed to represent the child.” Maryland’s statutory recognition of that due process right is found in Code, Courts Art., § 3-821 (1976 Cum. Supp.), a part of Subtitle 8, Juvenile Causes.

The section provides: “A party is entitled to the assistance of counsel at every stage of any proceeding under this subtitle.” What a party is entitled to in our judicial system may ordinarily be waived, but the waiver must be the result of an intentional relinquishment or abandonment of a fully known right. Johnson v. Zerbst, 304 U. S. 458 , 58 S. Ct. 1019 , 82 L. Ed. 1461 (1938). Procedural safeguards to assure that a waiver of representation in a juvenile proceeding is a valid waiver are set out in detail in the Maryland Rules. It must be well known to all members of the bar that these Rules are not mere guides, but must be followed.

Rule 906 b. 1. provides: “If, after the filing of a petition, a respondent, his parents, guardian or custodian, indicates a desire or inclination to waive representation, before permitting the waiver the court shall determine, after appropriate questioning in open court and on ⁶ the record, that the party fully comprehends: (i) the nature of the charges and the proceedings, the range of allowable dispositions, and that counsel may be of assistance to him in determining whether there may be defenses to the allegations of the juvenile petition, or circumstances in mitigation thereof; (ii) that'the right to counsel includes the right to the prompt assignment of an attorney, without charge to the party if he is financially unable to obtain private counsel; (iii) that even if the party intends not to contest the charge or proceeding, counsel may be of substantial assistance in developing and presenting material which could effect the disposition; and (iv) that among the party’s rights at any hearing are the right to call witnesses in his behalf, the right to confront and cross-examine witnesses, the right to obtain witnesses by compulsory process, and the right to require proof of any charges.” The only pertinent information developed by questioning in open court and on the record in this case was that the appellant’s father understood that his son had the right to an attorney, and that he was willing to go ahead without a lawyer. The judge made no determination that the parties fully comprehended anything beyond what we have just said. This Court, speaking through Chief Judge Orth, in an appeal from an adjudication of juvenile delinquency, In Re Appeal No. 544, Term 1974, 25 Md. App. 26 , 332 A. 2d 680 , (cert. granted, later dismissed as improvidently granted) (1975), applied by analogy the waiver of counsel provision of Maryland Rule 719, applicable in criminal cases. 1 We noted, at 39: “The Rule implements the constitutional mandates enunciated in Gideon v. Wainwright, 372 U. S. 335 ; ⁷ Johnson v. Zerbst, 304 U. S. 458 , and Carnley v. Cochran, 369 U. S. 506 . It has been consistently held that the requirements of the Rule are mandatory, and that compliance with them is required irrespective of the type of plea entered, or the lack of an affirmative showing of prejudice to the accused.

Manning v. State, 237 Md. 349 ; Taylor v. State, 20 Md. App. 404 ; State v. Diggs, 24 Md. App. 681 .” We found, on the record before us in that case, that the court should not have permitted the waiver of representation. We held that, due to lack of counsel, the waivers and admissions in that case were invalid and ineffective and the adjudicatory hearing was void. The same force is given to Rule 719 in criminal cases. The Court of Appeals said in State v. Renshaw, 2 276 Md. 259 , 347 A. 2d 219 (1975), at 267-68: “The record must show that the defendant is competent to waive the right to counsel, and that he knowingly and intelligently has done so after being made aware of the advantages and disadvantages of self-representation. * * * Where the accused cannot waive the right to counsel, or has not effectively done so, the court must take steps to insure that the accused is represented by counsel even if he professes his unwillingness to have a lawyer.” We cannot agree with the State’s contention that the record in the present case shows compliance in substance.

The Rule is composed of several subsections, each distinct from the other. Before the court may accept a juvenile’s waiver of counsel, it must satisfy each mandate. Anything less will render the waiver void as unknowingly and ⁸ unintelligently given. Compliance with the Rule does not require that the court recite the full litany in the words of the Rule.

Explanation, to assure full comprehension, is more important than recital. However the result is achieved,^the court must determine that the juvenile fully comprehends each of the rights and consequences delineated in the Rule. Renshaw v. State, 25 Md. App. 270, 274 , 333 A. 2d 363 (1975). Lack of counsel, a right not effectively waived in this case, requires reversal of the adjudication of delinquency.

The Right of Confrontation Appellant’s contention that he was denied his constitutional right to confront and to