Miller v. State

WILNER, Chief Judge. Appellant was one of two men charged with the kidnapping, robbery, and murder of Pamela Basu. The co-defendant, Rodney Solomon, is being represented by the Public Defender’s Office. Appellant, who was tried separately in the Circuit Court for Howard County, was offered representation by the Public Defender but, though indigent, he declined the offer.

He was represented at trial by Laurack D. Bray, Esq., an attorney whom he privately engaged. After a trial extending over a nearly two-week period, appellant was convicted of a number of offenses, including felony murder, for which he received sentences totaling life imprisonment plus 10 years. Through Mr. Bray, appellant filed an appeal to this Court. Appellant did not request representation by the Public Defender with respect to the appeal, and he has not been denied such representation.

Mr. Bray asserted at oral argument that he continues to represent appellant without charge to him, on a pro bono basis. Although there is nothing formally in the record to document that assertion, the State has not disputed it, and so we accept it as true. The issue now before us is a very limited one: it is whether, under the circumstances we have recounted, the State is obliged to furnish appellant, without charge to him, a transcript of the trial proceeding for use in his appeal. He moved for that relief in the circuit court and appeals from the denial of his motion.

Until that question is resolved, appellant cannot effectively proceed with the appeal from his convictions. ⁶³⁶ In denying appellant’s motion for a free transcript, the court relied upon Md.Rule 1 — 325(b), which provides, in relevant part: “The court shall order the State to pay the court costs related to an appeal ... and the costs of preparing any transcript of testimony, brief, appendices, and record extract necessary in connection with the appeal, in any case in which (1) the Public Defender’s Office is authorized by these rules or other law to represent a party, (2) the Public Defender has declined representation of the party, and (3) the party is unable by reason of poverty to pay those costs.” There is no dispute here that appellant is unable by reason of poverty to pay for the transcript. There is also no dispute that the Public Defender’s Office is authorized by law to represent appellant in this appeal and that it has never declined to provide that representation. It was solely on that ground — appellant’s failure to establish the second of the three conditions in the Rule — that the court refused to order the State to pay for the transcript. Appellant does not contend that the court misconstrued or misapplied the Rule.

His argument is that, as applied, the Rule is unconstitutional — that the State cannot validly condition an indigent person’s right to a State-provided transcript on a declination of representation by the Public Defender. That violates, he says, his Federal and State rights to due process of law and equal protection of the law as set forth in Griffin v. Illinois, 351 U.S. 12 , 76 S.Ct. 585 , 100 L.Ed. 891 (1956), and infringes upon his Sixth Amendment and Maryland Constitutional rights to counsel. We need not reach the Constitutional issues raised by appellant, for we shall conclude that he is entitled to the transcript under the Rule. In explaining that conclusion, we need to look at the derivation of the Rule in light of Griffin.

Griffin was a 5-4 decision. The judgment was explained in a plurality Opinion by Justice Black, in which three other Justices joined, and a concurring Opinion by Justice Frankfurter. Justice Black began by noting that, in Illinois, there ⁶³⁷ was a statutory right of appeal in criminal cases. He then framed the issue before the Court thusly: “The question presented here is whether Illinois may, consistent with the Due Process and Equal Protection Clauses of the Fourteenth Amendment, administer this statute so as to deny adequate appellate review to the poor while granting such review to all others.” Id. at 13, 76 S.Ct. at 588 .

In order to get “full direct appellate review” of alleged errors, it was necessary for the appellant to prepare a bill of exceptions, and, as a practical matter, that was impossible to do -without a stenographic transcript of the trial proceedings. Except in capital cases, however, criminal defendants needing a transcript, whether indigent or not, were required to purchase it. It was that requirement that served to deny indigent appellants effective appellate review. Justice Black' observed that the ability to pay costs in advance bears no rational relationship to a defendant’s guilt or innocence and thus cannot be used as an excuse to deprive a defendant of a fair trial.

Nor, he continued, can it be used to effectively deny the poor “an adequate appellate review accorded to all who have money enough to pay the costs in advance.” A State is not required by the Federal Constitution to provide a right of appellate review, but if it does provide such a right, it cannot do so in a way that discriminates against some convicted defendants on account of their poverty. The essential holding, expressed at 19, 76 S.Ct. at 590 , was that “[djestitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts.” There was, however, an important clarifying comment to that holding. At 20, 76 S.Ct. at 591 , Justice Black noted: “We do not hold, however, that Illinois must purchase a stenographer’s transcript in every case where a defendant cannot buy it. The Supreme Court [of Illinois] may find other means of affording adequate and effective appellate review to indigent defendants.” ⁶³⁸ Justice Frankfurter agreed that a State that provides appellate review cannot “draw a line which precludes convicted indigent persons, forsooth erroneously convicted, from securing such review merely by disabling them from bringing to the notice of an appellate tribunal errors of the trial court which would upset the conviction.” Id. at 23 , 76 S.Ct. at 591 .

His concern was more over the retroactive effect of the Court’s ruling, but, in conformance with Justice Black’s caveat, he too observed, at 24, 76 S.Ct. at 593 , that: “When a State not only gives leave for appellate correction of trial errors but must pay for the cost of its exercise by the indigent, it may protect itself so that frivolous appeals are not subsidized and public moneys not needlessly spent. The growing experience of reforms in appellate procedure and sensible, economic modes for securing review still to be devised, may be drawn upon to the end that the State will neither bolt the door to equal justice nor support a wasteful abuse of the appellate process.” Citing a number of statutes and an A.L.R. Note ( 100 A.L.R. 321 ), Justice Black observed that many States were already providing some aid for convicted defendants who needed a transcript in order to perfect an appeal. Maryland had required the State to prepare the record, including the transcript, for indigent appellants in death penalty cases since 1945. See 1945 Md.Laws, ch. 1068; Md.Code (1951) art. 5, § 89.

In 1958, the Legislature formally complied with the Griffin mandate by extending that right to criminal appellants in non-capital cases. 1958 Md.Laws, ch. 68; Md.Code (1957) art. 5, 15A. The only difference between capital and non-capital cases was that, in the former, the entitlement was automatic upon the filing of an oath “forma pauperis,” whereas in the latter not only did the defendant have to file such an oath but the court had to be satisfied that the defendant was, in fact, “unable by reason of poverty to defray the expense of prosecuting an appeal____” Id. Upon the enactment of the 1958 law, the Court of Appeals engrafted those provisions into its Rules, initially as Md.Rule 883 b. When the Court of Special Appeals was created in ⁶³⁹ 1967, the right to have the State pick up the cost of the appeal, including the preparation of a transcript, in non-capital cases was transferred to Md.Rule 1083; the comparable light in capital cases remained in Md.Rule 883.

It is evident, then, that since at least 1958, the State was obliged to defray the costs of an appeal, including provision of a transcript, for all indigent appellants in criminal cases. In 1971, the General Assembly created the Public Defender’s Office “to provide for the realization of the constitutional guarantees of counsel in the representation of indigents, including related necessary services and facilities, in criminal and juvenile proceedings within the State.... ” 1971 Md. Laws, ch. 209. It charged the Public Defender with providing legal representation to indigent persons in criminal and juvenile proceedings, including appeals to this Court and the Court of Appeals, either through staff attorneys employed in the Office or “by an attorney appointed by the Office of the Public Defender.” Md.Code art. 27A, § 4(d). To obtain outside attorneys, the Public Defender was directed under § 6(a) to develop and maintain a list of private attorneys “available to serve as counsel to indigent persons eligible for legal representation under this article” and was authorized by § 5(6) to “accept the services of volunteer workers or consultants at no compensation or at nominal or token compensation.” The Public Defender is responsible for ascertaining the indigent status of persons seeking representation, which “shall be measured according to the financial ability of the person to engage and compensate competent private counsel and to provide all other necessary expenses of representation.” Id. at § 7(a).

It has been clear since the enactment of art. 27A that, as part of its representation of indigent persons in the appellate courts, the Public Defender’s Office is responsible for obtaining such transcripts as are necessary to prosecute the appeal, and funds for that purpose are included in the annual budget for the Office. The Court of Appeals commented on this obligation and on the nature of transcripts ordered by the Public Defender in Levene v. Antone, 301 Md. 610 , 484 A.2d ⁶⁴⁰ 259 (1984). Responding to a certified question from the United States District Court, the Court held that transcripts ordered and paid for by the Public Defender in connection with representing indigent persons on appeal belonged to the Public Defender and not to the client. At 623, it held that “[tjranscripts are not acquired by the Public Defender simply as agent of [the clients] but in the discharge of his statutory responsibilities to [the clients].” The client had no property interest in them and no right to a free copy of them.

In its Opinion, the Levene Court took note of the procedures adopted by the Public Defender with respect to transcripts, among which were (1) if a client wanted a copy of the transcript, he had to pay for it, (2) transcripts would not be lent or given to the client, (3) the Public Defender “will not pay for preparation of transcripts for use in any case in which the defendant, appellant or petitioner has not been found eligible for Public Defender