Smith v. State

CATHELL, Judge. Appellant, Eugene Smith, was convicted in a bench trial in the Circuit Court for Baltimore County of theft of goods of the value of $300 or more. He was sentenced to a term of three years incarceration. He presents only one question on appeal: Did the court below err in refusing to postpone the case by: (a) improperly finding that appellant had waived counsel by inaction, and (b) improperly failing to allow appellant to explain a second reason for requesting a postponement and/or improperly failing to make any determination on the point whether there was a critical witness for the defense who was not present but whom the appellant could have produced with the court’s assistance if granted a brief postponement?

The Facts of the Offense We provide here relevant portions of the facts as contained in appellant’s brief: [T]he State’s only witness, Kenneth D. Bradley, took the stand and testified that he was a “loss prevention agent” at the Hecht Company, located on Security Boulevard in Baltimore County. The following occurred at about 8:55 p.m. on January 14, 1994, as Bradley was watching the store: On CC TV we observed a ... female go into the store through the west entrance. She went straight to a rack of Milano sport running suits, picked up fifteen of them and then proceeded out the exit. At that time I left the security office, which is on the end of the store, ran around the perimeter of the store and I caught up with the female.

At that time she saw me, she attempted to throw the warm-up suits into the truck which had its shell door, it was a small truck with a shell over the bed, the shell door was open. She attempted to throw it in there, missed, and jumped in the cab and yelling, ‘We are in trouble.” And the car attempted to back up and then leave its space. Mall security had seen me in pursuit, they followed me, and we were able to get the truck ³¹³ behind the defendant’s automobile and block its path. The mall security agent jumped out of the vehicle with his gun and ordered the defendant to exit the vehicle, which he did.

The female exited from the passenger side where she attempted to flee. I was able to catch up to her and place her under arrest. The name of the “... female” in question was either Fatima Ferguson or Katisha Ferguson. On being interrogated by Bradley, about 15 minutes after her arrest, Ferguson said that appellant “didn’t have any knowledge of” the theft.

For the defense, appellant’s brother, Maverick Smith, testified that on the evening in question, he and appellant drove to the Security Mall to pick up their older sister, Patricia Smith, who worked at J.C. Penney’s. (The woman, Ms. Ferguson, was not with them, and Maverick did not know her.) Maverick got out of the truck to go get Patricia, and when he came back, he found out that appellant had been arrested. On being told that “the girl with [appellant] stole something,” Maverick informed the authorities that they had had no “girl” with them. Maverick added that the latch on the back door of appellant’s truck was defective, and “wouldn’t ever lock.” The Procedural Facts Relating to the Request for, and Denial of, Appellant’s Request for a Continuance The record reveals that appellant was arrested on the 14th day of January, 1994.

On the 15th of January, 1994, he had an initial appearance before Commissioner Eugene Marshall. At that time, appellant was informed of the nature of the charge against him and the maximum allowable penalty upon conviction. He was then required to read the Notice of Advice of Right to Counsel. That notice, in pertinent part, related: 3.

You have the right to have a lawyer. 4. A lawyer can be helpful to you by: (A) explaining the charges against you; ³¹⁴ (B) telling you the possible penalties; (C) helping you at trial; (D) helping you protect your constitutional rights; and (E) helping you to get a fair penalty if convicted. 5. Even if you plan to plead guilty, a lawyer can be helpful. E.S. 6.

If you want a lawyer but do not have the money to hire one, the Public Defender may provide a lawyer for you. The court clerk will tell you how to contact the Public Defender. E.S. 7. If you want a lawyer but you cannot get one and the Public Defender will not provide one for you, contact the court clerk as soon as possible.

E.S. 8. DO NOT WAIT UNTIL THE DATE OF YOUR TRIAL TO GET A LAWYER. If you do not have a lawyer before the trial date, you may have to go to trial without one. In addition to initialing that he received advice as to his right to an attorney, he acknowledged receipt of those rights by executing a “Receipt,” which provided: RECEIPT I have read or have had read to me the contents of the above notice and acknowledge receipt of a copy thereof. 1/15/94 Date /s/ Eugene Smith Signature of Defendant 1/15/94 Date /s/ Eugene J. Marshall 8-045 Judge/Commissioner Appellant, at the same time, executed another receipt, acknowledging that he had read the Initial Appearance Report as well as the Notice of Advice or Right to Counsel form.

That Initial Appearance Report contained the Commissioner’s certification that he had required, inter alia, that appellant “read the Notice of Advice or Right to Counsel” and then advised “Defendant that if he appears for trial without a lawyer, the court could determine that he has waived counsel ³¹⁵ and proceed to trial with defendant unrepresented by a lawyer.” Appellant was then afforded a bail review hearing before Judge Seidler of the District Court on January 17, 1994. The record forwarded to us indicates that Judge Seidler also advised appellant of his right to counsel: BAIL REVIEW SUMMARY Your bail review was held by Judge I. MARSHALL SEIDLER on 01/17/94. THE COURT, ON THE DATE SHOWN ABOVE, Made certain you received a copy of the charging document; Informed you of right to, and importance of, counsel; Referred you to the public defender; Advised you of your right to jury trial.... [Emphasis added.] The court’s status report, dated January 17, 1994, also indicates that appellant received advice as to his right to counsel and was again advised to seek the services of the public defender: THE COURT ON THE DATE SHOWN BELOW— _Bail Review Postponed X Made certain the defendant received a copy of the charging document X Informed the defendant of right to, and importance of, counsel _Complied w/Rule 4-215 X Referred defendant to public defender _ Advised felony defendant of right to preliminary hearing _ Defendant requested preliminary hearing at this time X Advised defendant of right to jury trial The District Court’s pre-trial docket also indicates that the defendant, appearing without counsel, had been informed of the importance of counsel and “that making next appearance without counsel could be a waiver.” During this period, his trial date was scheduled for March 4, 1994. Thereafter, on March 4, 1994, he requested a postponement and, when it was ³¹⁶ denied, prayed a jury trial, thereby divesting the District Court of jurisdiction to try him.

Following the earlier January 17, 1994 proceedings in the District Court but prior to the March 4th prayer for a jury trial, appellant, by February 23, 1994, had requested that the public defender represent him. This request was declined because appellant had filed it within ten working days of trial and, thus, had failed to comply with an in-house requirement of the public defender’s office. 1 This is evidenced by a letter from the public defender’s office that provides, in pertinent part: (x) You have applied to [sic] late to be represented by the Public Defender’s Office. Our office requires that you apply at least 10 working days prior to your trial date. If you are able to get your case postponed by the Court, you may re-apply for the services of the Public Defender.

If you have any questions, you may contact me at 321-3727. Sincerely, /s/Patricia E. Collins Patricia E. Collins Intake Supervisor [] NOTE: YOU MUST TAKE THIS LETTER WITH YOU TO COURT ON THE DAY OF TRIAL. DISTRICT COURT CASES: District Court Attorneys may be reached by phone at 321-3796 or 321-3874 Monday thru Friday between the hours of 9:00 am and 4:00 pm. However, specific telephone hours are every Friday between 9:00 am—11:00 am and 2:00 pm—4:00 pm.

On March 7, 1994, Judge Howe, the properly designated administrative judge, heard appellant’s request for a postponement. The record before us indicates the following: ³¹⁷ THE COURT: Why are you asking for a postponement? THE DEFENDANT: Two reasons. Uhm, one of them is that, uhm, I miscalculated the time that it took me to obtain an attorney.

It was, I was hoping to afford one and things got in the way. I had accident and I was going back and forth to the treatments, so it got away from me. And by the time that I went to, to apply for a Public Defender, it was too late. So the lady, she gave me, a, a letter to bring to the Court to show that I did attempt to ask for a Public Defender.

And, uhm, secondly, I like— THE COURT: All right. You had a bail review by Judge Seidler on January 17th, 1994, is that right, had a bail review? THE DEFENDANT: Bail review. THE COURT: Yes.

THE COURT: In District Court, and Judge Seidler told you it was very important for you to get a lawyer; did he not? THE DEFENDANT: Yes, he did explain to me to get a lawyer. THE COURT: What did you do between January 17th and— THE DEFENDANT: Okay. I was still— THE COURT: —today?

THE DEFENDANT: —I was, I was all right, I was, all during the week, I was, I was due to report to the doctor’s for treatment. THE COURT: Right. THE DEFENDANT: I was in the car accident, right— THE COURT: I heard you when you said that. THE DEFENDANT: —January the 7th.

THE COURT: How many times did you go to the Public Defender’s Office between January the 17th and March 4th when you were in the District Court? ³¹⁸ THE DEFENDANT: Well, I successfully got there one time. THE COURT: Mr. Smith, listen to me. What was the first day that you actually presented yourself to the Public Defender’s Office in Baltimore County, Maryland, in Tow-son? THE COURT: Okay.

So you went there, apparently, on February 23rd of 1994? THE COURT: Record does reflect in, in the court file, Case 93-CR-2404. The Defendant’s request for postponement is denied. Has not found a good reason for me to postpone his case.

THE COURT: Yes. THE COURT: He’s waived his attorney by inaction. THE DEFENDANT: Well, may I, may I state— THE COURT: You’re going to go to trial today, sir[?] THE