Utt v. Warden, Balto. City Jail

MacDaniel, J., delivered the opinion of the Court. In this appeal we are asked to consider whether the Sixth Amendment to the United States Constitution confers a right to have the assistance of counsel at a governor’s extradition hearing. We shall hold that it does not. Appellant David Harold Utt, a/k/a Harold David Utt, was wanted in Indiana on charges of theft.

He fled that State but for one reason or another was apprehended by Maryland authorities (the record is not clear on the point). Word of appellant’s arrest and detention reached Indiana authorities, whereupon the Governor of Indiana presented a demand for his extradition. On January 24, 1980, and in accordance with the Maryland Uniform Criminal Extradition Act, 1 an executive hearing was held to consider the matter. On January 28,1980, the Governor of Maryland signed appellant’s warrant of rendition.

By Order of the Baltimore City Court, entered March 3, 1980, appellant was remanded to the custody of the warden of the Baltimore City Jail pending extradition. On March 10, 1980, appellant filed a petition for a writ of habeas corpus. The petition was heard April 9, 1980, and the following stipulation entered into evidence: "... it is agreed and stipulated between the State and the petitioner that the petitioner received notification that there was to be an extradition hearing at the 16 Francis Street building, Jeffrey Building, in Annapolis. That is concerning the ⁴⁸⁸ extradition.

And that the petitioner requested that the Public Defender’s Office represent the petitioner. And that the petitioner was told that it was the inappropriate time, that it was too soon, and that the Public Defender’s Office would not represent the petitioner at that hearing. And that the only time that the Public Defender’s Office would step in was after, or when a petition was filed for writ of habeas corpus, Your Honor. That the defendant did want an attorney to represent him.

And the defendant did not have an attorney at the time____” Appellant raised but one issue: denial of his Sixth Amendment right to counsel at the Governor’s hearing. The petition was denied and this appeal followed. Appellant here asserts, as he asserted below, that the State’s failure to afford him the assistance of counsel at the Governor’s (extradition) hearing amounts to a denial of due process of law, in violation of his rights under the Sixth and Fourteenth Amendments of the Constitution of the United States. Appellee replies that there is no constitutional or statutory right to counsel at a governor’s hearing so that, even assuming appellant was indigent (there was no such proffer in the case), the State was under no obligation to provide it.

We are aware of no decision of this Court or of the Court of Appeals in which this issue has been resolved. 2 ⁴⁸⁹ The Sixth Amendment right to the assistance of counsel is a fundamental constitutional right, which has been made applicable to the States through the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335 , 83 S. Ct. 792 , 9 L. Ed. 2d 799 (1963). Since the Supreme Court’s decision in Powell v. Alabama, 287 U.S. 45 , 53 S. Ct. 55 , 77 L. Ed. 158 (1932), it has been clear that these constitutional rights attach whenever adversary judicial proceedings have been initiated against a defendant. 3 Although the Supreme Court has emphasized that "a person’s Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him,” and not before, 4 this is not to suggest that the constitutional right to counsel only attaches at trial itself. Rather, as the Court has made clear, 5 the right attaches at any point in the judicial proceedings against a defendant which may be termed a "critical stage.” Generally, a critical stage has been reached whenever constitutional or other rights can be asserted or waived; when the opportunities for an effective defense must be seized or lost, or where events occur that can affect the entire trial.

In United States v. Wade, supra, 388 U.S. at 226-27, 87 S. Ct. at 1932, 18 L. Ed. 2d at 1149, the Court provided the following guide: ⁴⁹⁰ "... In addition to counsel’s presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate the accused’s right to a fair trial. . . . The presence of counsel at such critical confrontations, as at the trial itself, operates to assure that the accused’s interests will be protected consistently with our adversary theory of criminal prosecution... .” (Emphasis added.) And in Gerstein v. Pugh, 420 U.S. 103, 122 , 95 S. Ct. 854, 867 , 43 L. Ed. 2d 54, 70 (1975), the Supreme Court stated: "The Court has identified as 'critical stages’ those pretrial procedures that would impair defense on the merits if the accused is required to proceed without counsel.” (Citations omitted.) In this case there can be no doubt that "adversary criminal proceedings” had been instituted against appellant prior to his extradition hearing (though the record does not precisely describe the manner in which he was charged), so the issue here thus resolves itself to whether such a hearing was a "critical stage” in those proceedings. Our resolution of this issue depends upon an analysis of "whether potential substantial prejudice to [appellant’s] rights inheres in the particular confrontation [i.e., the Governor’s hearing] and the ability of counsel to help avoid that prejudice,” United States v. Wade, supra, 388 U.S. at 227, 87 S. Ct. at 1932, 18 L. Ed. 2d at 1157 (1967), and so calls for a review of the purposes of extradition generally and of extradition procedure under Maryland law.

We note that extradition derives from the Constitution of the United States, Article IV, Section 2, clause 2 of which provides: "A Person charged in any State with Treason, Felony or other Crime, who shall flee from Justice, and be found in another State, shall on demand of the executive Authority of the State from which he ⁴⁹¹ fled, be delivered up, to be removed to the State having jurisdiction of the crime.” To implement this constitutional provision, Congress has provided in 18 U.S.C. § 3182 that: "Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State, District or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, the executive authority of the State, District or Territory to which such person has fled shall cause him to be arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within thirty days from the time of the arrest, the prisoner may be discharged.” The Supreme Court had occasion to consider the purposes and function of the Extradition Clause in Michigan v. Doran, 439 U.S. 282 , 99 S. Ct. 530 , 58 L. Ed. 2d 521 (1978), when the Court was asked to determine whether the courts of an asylum state may nullify the executive grant of extradition on the ground that the demanding state had failed to show a factual basis for its charge supported by probable cause. It stated, at 439 U.S. 287 -89, 99 S. Ct. 534 -35, 58 L. Ed. 2d 526 -27: "The Extradition Clause was intended to enable each state to bring offenders to trial as swiftly as possible in the state where the alleged offense was committed. . . . The purpose of the Clause was to preclude any state from becoming a sanctuary for ⁴⁹² fugitives from justice of another state and thus 'balkanize’ the administration of criminal justice among the several states.

It articulated, in mandatory language, the concepts of comity and full faith and credit, found in the immediately preceding clause of Art. IV. The Extradition Clause, like the Commerce Clause, served important national objectives of a newly developing country striving to foster national unity. ... In the administration of justice, no less than in trade and commerce, national unity was thought to be served by de-emphasizing state lines for certain purposes, without impinging on essential state autonomy. Interstate extradition was intended to be a summary and mandatory executive proceeding derived from the language of Art. IV, § 2, cl. 2, of the Constitution. . . .

The Clause never contemplated that the asylum state was to conduct the kind of preliminary inquiry traditionally intervening between the initial arrest and trial. Near the turn of the century this Court, after acknowledging the possibility that persons may give false information to the police or prosecutors and that a prosecuting attorney may act 'either wantonly or ignorantly,’ concluded: 'While courts will always endeavor to see that no such attempted wrong is successful, on the other hand, care must be taken that the process of extradition be not so burdened as to make it practically valueless. It is but one step in securing the presence of the defendant in the court in which he may be tried, and in no manner determines the question of guilt.’ In re Strauss [ 197 U.S. 324 (1905)], at 332-33.’” (Citations omitted.) In addition to Article IV, Section 2 of the Constitution and 18 U.S.C. § 3182 , extradition in Maryland is governed by ⁴⁹³ the Uniform Criminal Extradition Act, enacted in 1937, 6 and now codified in the Maryland Annotated Code, Article 41, §§ 16-43. Article 41, § 18 provides that the Governor cannot lawfully comply with a requisition for extradition unless it appears that the person is substantially charged with a crime against the laws of the demanding State by indictment or affidavit properly certified, and that he is a fugitive from justice of the demanding State.

But an extradition requisition reciting that the accused is charged with a certain crime against the demanding State, and that he has become a fugitive from justice of that State, and accompanied by a certified copy of the indictment or affidavit, makes a prima facie case against the accused as an alleged fugitive from justice from that State. Audler v. Kriss, 197 Md. 362, 364 (1951). Article 41, § 19 provides: "When a demand shall be made upon the Governor of this State by the executive authority of another state for the surrender of a person so charged with crime, the Governor may call upon the Attorney General or any prosecuting officer in this State to investigate or assist in investigating the demand, and to report to him the