Raymond v. State Ex Rel. Szydlouski

Delaplaine, J., delivered the opinion of the Court. Henry R. Raymond, Superintendent of the Maryland State Reformatory for Males, has brought this appeal from an order of Judge Edmond H. Johnson, of the First Judicial Circuit, discharging Leonard Szydlouski from appellant’s custody after hearing on habeas corpus. The judge stayed the order pending appeal. Code Supp. 1947, art. 42, § 3C.

On September 2, 1947, petitioner, then eighteen years old, was convicted in the Criminal Court of Baltimore on charges of carrying a concealed weapon and burglary. He was sentenced to serve in the Reformatory six months for carrying a concealed weapon and two years for burglary, the terms to run consecutively. At the hearing on habeas corpus on August 6, 1948, petitioner swore that, while he was held in confinement before his trial in the Criminal Court, he asked a guard to allow him to use the telephone, and for that purpose to give him some of his money, which had been taken from him, to call a lawyer, or to ask his sister to pay for one, but was denied the request. He also swore that he asked the captain for the same favor.

He further stated that when he was taken to the Court House someone asked him if he had a lawyer, and he replied “No,” and he was told to wait in the waiting room for trial. He was asked by an Assistant State’s Attorney whether he wanted to plead guilty or not guilty, and whether he wanted to be tried by the Court or by jury. He pleaded guilty of carrying a concealed weapon, and not guilty of burglary. He elected to be tried by the Court without a jury.

He ⁶⁰⁶ did not ask' the Court to appoint a lawyer for him. He was given the opportunity to cross-examine the State's witnesses, and he cross-examined some of them. He was given the opportunity to testify in his own defense, and he took the stand. He was also given the opportunity to call any witnesses he desired to testify in his behalf.

Judge Johnson held that there was nothing in the record to show that petitioner had been advised of his right to be represented by either counsel of his own choosing or by someone appointed by the court, and that in view of his age and his general position and the seriousness of the charges against him, he had been deprived of his constitutional rights. First. We consider whether the trial in the Criminal Court violated Article 21 of the Declaration of Rights, which provides that in all criminal prosecutions every man has a right “to be allowed counsel." Originally in England a prisoner was not permitted to be heard by counsel on the general issue of not guilty on any indictment for treason or felony. That rule was relaxed by statute in 1695 to the extent of permitting a person accused of treason the privilege of being heard by counsel. 7 Will. 3 ch. 3.

The rule forbidding the participation of counsel remained in force as to indictments for felony until changed by statute in 1836. 6 & 7 Will. 4, ch. 114. The early English common-law rule was not accepted in America. In at least twelve of the thirteen Colonies the right of the accused to have counsel in the trial of any criminal charge was fully recognized. The Constitutions of many of the States in varying language guarantee to persons accused of crime the right to have the assistance of counsel for their defense.

In 1777 New York adopted a provision similar to that in the Maryland Declaration of Rights, which was originally adopted in 1776. A constitutional mandate that the accused should have the right to be heard by himself and by his counsel was adopted by New Hampshire in 1774, by Pennsylvania in 1776, by Delaware in 1782, and by Connecticut in 1818. New Jersey had its first constitutional provision on the ⁶⁰⁷ subject in 1776, North Carolina and South Carolina in 1868, Rhode Island in 1843, Georgia in 1798, and Massachusetts in 1790. In the light of the common-law practice in England it is evident, as Justice Roberts observed in Betts v. Brady, 316 U. S. 455, 466 , 62 S. Ct. 1252, 1258 , 86 L. Ed. 1595 , that the constitutional provision to the effect that the accused should be “allowed” counsel in criminal prosecutions (Article 21, Maryland Declaration of Rights) was intended to do away with the rules which denied representation by counsel, but was not aimed to compel the State to provide counsel for the accused.

In that case the defendant, who had been indicted for robbery in the Circuit Court for Carroll County, Maryland, was unable to employ counsel on account of lack of funds, and so informed the judge at his arraignment. He requested that counsel be appointed for him, but the judge advised him that it was not the practice in Carroll County to appoint counsel for indigent defendants except in prosecutions for murder or rape. The defendant then pleaded not guilty and elected to be tried without a jury. Witnesses were summoned in his behalf, and he examined these witnesses and cross-examined the State’s witnesses.

The judge found him guilty and imposed a sentence of eight years. While serving his sentence, he forwarded a petition for habeas corpus to Chief Judge Bond of the Court of Appeals. Judge Bond denied the relief sought and remanded him to the custody of the warden of the Penitentiary. On writ of certiorari the Supreme Court upheld Judge Bond’s action.

In Coates v. State, 180 Md. 502, 509 , 25 A. 2d 676, 679 , decided a few weeks before Betts v. Brady, supra, we said: “Never in the State Courts has it been held that care for the interests of defendants in the appointment of counsel has been required as an essential to a valid trial, under constitutional or other requirement.” This statement is in accord with the remark in Betts v. Brady, supra, concerning the purpose of constitutional provisions such as Article 21. Failure or refusal to appoint counsel ⁶⁰⁸ is not a violation of Article 21. Notwithstanding this remark in Betts v. Brady, supra, the United States Supreme Court, both before that case, Johnson v. Zerbst, 304 U. S. 458 , 58 S. Ct. 1019 , 82 L. Ed. 1461 , 146 A. L. R. 357; Walker v. Johnston, 312 U. S. 275 , 61 S. Ct. 574 , 85 L. Ed. 830 ; Glasser v. United States, 315 U. S. 60 , 62 S. Ct. 457 , 86 L. Ed. 680 , and since, Foster v. Illinois, 332 U. S. 134 , 67 S. Ct. 1716 , 91 L. Ed. 1955 ; Bute v. Illinois, 333 U. S. 640 , 68 S. Ct. 763 , 92 L. Ed. 986 , has construed the provision of the Sixth Amendment that the accused shall enjoy the right “to have the Assistance of Counsel for his defense” as requiring the appointment of counsel in all cases where an accused is unable to secure an attorney, and the right is not intentionally and competently waived. But this provision of the Sixth Amendment is not applicable to State Courts and is not a part of due process as guaranteed by the Fourteenth Amendment.

Second. We consider whether the failure of the Criminal Court to appoint or offer to appoint counsel for petitioner was a denial of due process of law in violation of the Fourteenth Amendment. This was the ultimate question decided by the Supreme Court in Betts v. Brady, supra, and also by the Court of Appeals in Coates v. State, 180 Md. 502 , 25 A. 2d 676 , and in Smith v. State, 180 Md. 529 , 25 A. 2d 681 , both of which were decided April 22, 1942. In Powell v. Alabama, 287 U. S. 45 , 53 S. Ct. 55 , 77 L. Ed. 158 , 84 A. L. R. 527, in which the circumstances of the trial made it a mockery (compare Moore v. Dempsey, 261 U. S. 86 , 43 S. Ct. 265 , 67 L. Ed. 543 ), the Court had held that at least in capital cases effective appointment of counsel is an essential of due process.

Compare Palko v. Connecticut, 302 U. S. 319 , 58 S. Ct. 149 , 82 L. Ed. 288 . In Smith v. O’Grady, 312 U. S. 329 , 61 S. Ct. 572 , 85 L. Ed. 859 , the Court had held that obtaining a plea of guilty by trickery from a man without counsel was a denial of due process. In Coates v. State, supra, where the defendant pleaded guilty to four indictments and not guilty to five, and the Criminal Court of Baltimore imposed sentences totaling ⁶⁰⁹ 90 years, it appeared that the defendant was only 19 years old, was inexperienced in court procedure, and was not represented by counsel, and there was no cross-examination of the State’s witnesses, and confessions not properly introduced were used against him. We reversed the judgments because failure to appoint counsel under the circumstances was a denial of due process.

But in Smith v. State, supra, where the defendant was tried on four indictments, one for robbery, two for robbery with a deadly weapon, and one for assault, we refused to disturb the sentences totaling 50 years and 6 months, although the defendant was not represented by counsel at the trial, since he was an old offender, had been tried for criminal offenses several times before and was familiar with criminal trials, and it further appeared that his rights had been protected at the trial. In Jewett v. State, 190 Md. 289, 296 , 58 A. 2d 236, 238 , we would not say that “mere failure to appoint counsel, without request, or to ask whether appellant desired such appointment was, apart from other circumstances, a denial of due process,” but we did suggest that the wise practice in any serious case is to appoint counsel, unless the accused intelligently waives such appointment in response to a question whether he desires it. We might add that it would also be wise to make a docket entry to this effect whenever appointment of counsel is offered and waived. The judgment was reversed in the Jewett case because we were unable to say from the state of the record that the accused had actually received a fair trial with respect to the assistance of counsel and opportunity to obtain witnesses.

In Betts v. Brady, 316 U. S. 455, 472 , 62 S. Ct. 1252, 1257 , 86 L. Ed. 1595 , the Supreme Court held that the Fourteenth Amendment does not require “that in every criminal case, whatever the circumstances, a state must furnish counsel to an indigent defendant.” In that case the defense was an alibi and the simple issue was the veracity of the testimony. The accused was not helpless, but was a man 43 years old with ordinary intelligence ⁶¹⁰ and ability to take care of his own interests on the trial of that narrow issue. He was not wholly unfamiliar with criminal procedure, having previously pleaded guilty to larceny and served a sentence. He was tried without a jury.

The< Court said that such trials are “much more informal than jury trials and it is obvious that the judge can much better control the course of the trial and is in a better position to see impartial justice done than when