State v. Diggs

Orth, C. J., delivered the opinion of the Court. Both the Court of Appeals and this Court have taken pains to persuade, expostulate, and warn bench and bar that the Maryland Rules of Practice and Procedure “are not guides to the practice of law but precise rubrics ‘established to promote the orderly and efficient administration of justice and [that they] are to be read and followed.’ ” Isen v. Phoenix Assurance Co., 259 Md. 564, 570 , quoting Brown v. Fraley, 222 Md. 480, 483 ; Green v. State, 19 Md. App. 683, 687 . It has been made abundantly clear that they are not apocrypha but “shall, when made, have the force of Law, until rescinded, changed, or modified by the said Judges [of the Court of Appeals], or the General Assembly.” Constitution of Maryland, Art. IV, § 18; Wilson v. State, 227 Md. 99 . They have been enforced rigorously, ofttimes with unhappy consequences for those who did not observe them.

Despite the repeated cautions and imploring admonishments, there still comes to hand, all too frequently, examples of failure to pay heed. The case before us provides another illustration. ⁶⁸³ Here the bench was at fault, with the result that a full plenary trial in a criminal cause must be nullified, and the accused tried again almost two years after the crime was committed. But the rule disregarded is a fundamental one of real import. It concerns the constitutional right of a person accused of crime to have the assistance of counsel at his trial.

NATHAN E. DIGGS was arrested on 10 May 1973 and charged under warrant #47300972 with unlawfully possessing in Baltimore City controlled paraphernalia, namely glassine bags suitable for packaging a controlled dangerous substance in sufficient quantity and under circumstances to reasonably indicate an intent to manufacture and distribute, and under warrant #47300973 with possession of heroin. He was not recommended by the Pre-Trial Release Division of the Supreme Bench of Baltimore City for release on his own recognizance. The docket entries reflect that on 11 May he was released on $500 bail posted by a bonding company. 1 The warrants came on for trial in the District Court of Maryland, District I, Baltimore City, Criminal Division, on 6 June 1973. According to the transcript of the proceedings, James Stancil appeared on behalf of Diggs.

Stancil informed him of his right to be tried by a jury and of his right to waive a jury trial and be tried by the court. Diggs prayed a trial by jury and bail was continued. It seems from the transcript that there were companion cases against one Carl Alexander and a Miss Cook and that James L. Foster appeared on their behalf. The transcript ends with the notation: “Cases forwarded to Jury in Criminal Court on June 20, 1973.” On 20 June 1973 in the Criminal Court of Baltimore, the State called the cases against Diggs.

Howard Dwin, Esq. addressed the court, Judge James W. Murphy presiding: “If it please the Court, Miss Cook, Mr. Alexander. ⁶⁸⁴ If Your Honor please, I am informed by both of them that as of yesterday apparently an attorney from the Legal Aid agreed to represent them. They had been talking to him and preparing the case and yesterday sometime in the afternoon they were informed by this gentleman he was not going to represent them. These files were rushed over to the Public Defender yesterday afternoon by Legal Aid, and these two people would like to and they have the financial means to hire their own attorney. I would like to have the case postponed so they can hire an attorney of their choice with the understanding that should Your Honor grant this postponement that they better be ready for trial with or without an attorney, and if you have the means — as to Diggs — I really have no knowledge of him, but he is a co-defendant in this case — I can talk with him and see what the problem is.” Miss Cook requested a postponement for a week to obtain an attorney.

Dwin thought the State would want to try all the cases together “since it is a search and seizure warrant” and thought it “simply logical” that if the other two cases were postponed Diggs’s case would follow. After discussion about Legal Aid’s representation in the District Court, 2 the State declared it had no objection and gave a new trial date of 27 July. The court granted a postponement: “All right. July 27th.

Don’t forget that date. That’s as to Cook, Alexander and Diggs. Do you all understand the cases will be set for July 27th?” Each defendant answered, “Yes.” The judge took pains to explain that the trial on 27 July in all probability “will not be in this courtroom. Criminal Court Part X will probably be down the hall.” He warned: “But in any event, ⁶⁸⁵ get your own counsel and be ready for trial that day whether or not.” In the record before us there is a transcription of “the excerpt of docket proceedings in the Criminal Court, Part X, of Baltimore City in the matter of the postponement of the case of Nathan Diggs on July 27, 1973”, before Judge Aaron Baer.

It notes the appearances of Charles Brown, Esq., Assistant State’s Attorney and David Jacobs, Esq., Public Defender Attorney. The transcript begins with Brown informing the judge that Diggs “came into your court about an hour ago.” He reminded the judge that co-defendants Patrice Cook and Carl Alexander had been tried “this morning.” He said: “At this time all the officers have left, Your Honor. The State is unable at this time to go ahead with that case [against Diggs].” The judge asked Diggs why he was late and Diggs’s explanation was that his wife had heart trouble. “I had to see about her and I was late getting here; when I got her it was about 11:00 or something and I didn’t know where the courtroom was, because when I was here they said they would move it from up, up in 10,438.” The judge made further inquiry about Mrs. Diggs. Diggs replied: “She had heart trouble and I had to rush her to the hospital, and I had to see about her.

That’s why I was late.” The judge struck the bail forfeiture and directed that a trial date be set. The State asked if Diggs had an attorney and Diggs said he did not. He was asked if he could afford an attorney and he said: “I — no, not at this time.” The Public Defender said that he would be interviewed — “We’ll take care of it.” Trial was set for 11 September and Diggs was so informed by the Clerk. The warrants came on for trial in the Criminal Court of Baltimore, Part 10, before Judge Baer, on 11 September 1973 as scheduled.

The Assistant State’s Attorney called the case. The transcript shows what then transpired: “THE CLERK: Mr. Diggs, step up. Mr. Diggs, do you have an attorney? THE DEFENDANT: No. ⁶⁸⁶ THE CLERK: Have you made arrangements for an attorney?

THE DEFENDANT: No. THE CLERK: You have not? THE DEFENDANT: Well, I tried to get one at first when I was here before. But, I couldn’t get the money to get one. THE CLERK: Have you talked to the Public Defender?

THE DEFENDANT: No. THE COURT: Has this case been postponed before? THE CLERK: If has been postponed twice, Your Honor, in this court and I don’t know about the District. THE COURT: Why was your case postponed the last time? THE DEFENDANT: The last time, Your Honor, when I got here it was a little late and the other two defendants had been tried and you postponed the case until today.

The reason I was late — THE COURT: Forget about the reason why you were late. What did I say about your coming into Court the next time without an attorney? THE DEFENDANT: You said that the case would be postponed and another gentlemen — THE COURT: I told you it would be postponed and what? THE DEFENDANT: It would be postponed and another gentlemen came out to speak to me about going to a lawyer I had an accident case with or go to the Public Defender.

THE COURT: You say you have not talked to the Public Defender? THE DEFENDANT: No. THE COURT: Did I tell you if you came to court today you would be tried with or without an attorney. ⁶⁸⁷ THE DEFENDANT: I think you did, Your Honor. THE COURT: Then, why are you here without an attorney? THE DEFENDANT: I haven’t been able to get an attorney.

I had been in the hospital. THE COURT: However, I told you the last time you were here that if you did not come in with an attorney you would be tried without one. THE DEFENDANT: Yes. THE COURT: Alright.

Have a seat. You will be tried without one.” The judge explained: “You understand, Mr. Diggs, that the reason I am saying you will be tried today without an attorney is that I believe you have effectively waived your right to have an attorney because you were given notice at your last hearing that you would be tried today with or without a lawyer.” Diggs was arraigned, pleaded not guilty, and elected to be tried by the court. The trial proceeded. The State offered evidence and rested.

The court fully informed Diggs of his right to testify or not testify. Diggs testified, and was afforded the opportunity for allocution before verdict was rendered. He was found guilty of both offenses. After examination of him by the court as to his background, employment and marital status, he was sentenced to 4 years on each conviction, the sentences to run concurrently.

The judge advised Diggs about his rights to file a motion for a new trial, to petition for a review of sentence, and to file an appeal to this Court. Diggs did not avail himself of any of these rights. On 22 March 1974, however, he collaterally attacked the judgments by filing a petition in proper person for relief under post conviction procedures, giving as his sole reason why the judgments should be set aside that “The State failed to produce an attorney to represent the Petitioner at his trial.” Diggs added: “We hold these truths to be self evident; that it is not necessary to cite cases of Law at this time according to the Maryland Annotated Code; yet it is clear that the Constitutional rights of the Petitioner has been violated.” The judge presiding at the hearing which ⁶⁸⁸ followed agreed. On 30 September 1974 he granted Diggs a new trial.

The State applied for leave to appeal. We granted the application and the case was transferred to our direct appeal docket, briefed and argued. Code, Art. 27, § 645-1; Maryland Rule BK 47. The sole contention of the State is that the court below was wrong in granting Diggs a new trial.

Diggs testified at the hearing. He said that he did not have an attorney at his trial, that the trial judge did not ask if he had an attorney, did not advise him that he had the right to an attorney, and did not inquire, in any way, or in any manner, whether he had the ability to obtain counsel. He said that he did not have time to request counsel although he desired an attorney. He asserted he was late for the trial and that he explained that the reason he was late was the sickness of his wife. “So, the judge stated that with or without an attorney, he was going to try me anyway, and that’s what happened.” Diggs’s counsel opined that his client was confused, and, of course, he was.

What actually occurred, as we have indicated, was shown by the transcripts of the proceedings of 6 June, 20 June, and 27 July 1973 which were offered in evidence by the State, and by the transcript of the trial on 11 September 1973, which was received in evidence as a joint exhibit. The substance of what was elicited from him on cross-examination was that the case was originally scheduled for trial on 23 May 1973, and was postponed to 6 June, at which time it was sent to the Criminal Court of Baltimore for trial on 20 June. On that date it was postponed to 27 July and then to 11 September. From the time of his arrest to the time he was tried he did not obtain a lawyer because he could not afford one, and he did not seek the aid of the Public Defender because he did not know about the Public Defender.

On re-direct examination he said that the Public Defender had never approached him and that he had never talked to anyone from that Office. It was represented to the court that Stancil was not with Legal Aid or a Public Defender, that Foster was with Legal Aid, and that Dwin and Jacobs were Assistant Public Defenders. Diggs claimed that during the ⁶⁸⁹ entire period he had no money to employ an attorney. On re-cross-examination it was adduced that he had been represented by a court appointed attorney when convicted of a crime about eleven years ago.

He said that when the trial date of 11 September was set on 27 July, “I left the courtroom.” He did not “recall any lawyer speaking to [him] on that particular day.” Willie Hart testified on behalf of the State. He said he was employed as an investigator for the Public Defender in May 1973, assigned