332 F.2d 341 (4th Cir. 1964), 9246, DeToro v. Pepersack

Docket Nº:9246.
Citation:332 F.2d 341
Party Name:Percy DeTORO, Appellant, v. Vernon L. PEPERSACK, Warden of the Maryland Penitentiary, Appellee.
Case Date:April 15, 1964
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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332 F.2d 341 (4th Cir. 1964)

Percy DeTORO, Appellant,


Vernon L. PEPERSACK, Warden of the Maryland Penitentiary, Appellee.

No. 9246.

United States Court of Appeals, Fourth Circuit.

April 15, 1964

Argued Jan. 23, 1964.

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William J. McCarthy, Baltimore, Md. (Court-assigned counsel), for appellant.

Franklin Goldstein, Asst. Atty. Gen. of Maryland (Thomas B. Finan, Atty. Gen. of Maryland, on brief), for appellee.

Before BRYAN and J. SPENCER BELL, Circuit Judges, and MICHIE, District judge.

J. SPENCER BELL, Circuit Judge.

Appellant, Percy DeToro, appeals from an order of the District Court for the District of Maryland, discharging his petition for a writ of habeas corpus. 1 The question before the district court, and now before this court on appeal, is a narrow one: was DeToro denied his constitutional rights under the sixth amendment when he entered a plea of not guilty at two preliminary hearings, while not represented by counsel. 2

DeToro was arrested on January 22, 1961, on the charge of homicide. Thereafter on two separate occasions, January 23 and February 7, he was taken before a magistrate at Central Police Station, Baltimore, Maryland, and called upon to plead to the charge filed against him. On both occasions, DeToro entered a plea of not guilty. On neither occasion was he afforded the opportunity to consult with, retain, or be furnished counsel. Counsel was appointed by the State to represent him at his trial for first degree murder. At the beginning of the trial, DeToro again entered a plea of not guilty. He was found guilty and sentenced to death. After an unsuccessful direct appeal to the Maryland Court of Appeals 3 and exhaustion of all state post conviction remedies, 4 DeToro filed a petition for a writ of habeas corpus in the federal courts. New counsel was appointed and a plenary hearing held by the district court. The district court found that the State's failure to appoint counsel at the preliminary hearings had not violated DeToro's sixth amendment rights and discharged the writ, but stayed execution of the death sentence pending this appeal.

DeToro makes two contentions before this court. He contends, first of all, that the right of an accused to counsel in felony cases, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), extends to all stages in the judicial process and not only to those that may be characterized as critical. DeToro attempts to find support for this view in a series of Supreme Court decisions, beginning with Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), and culminating in Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961), and White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963). His second contention is that even if these decisions require that a stage be deemed critical to entitle an accused to the assistance of counsel, the preliminary hearings we consider here may be properly considered such.

Despite the very able arguments advanced by counsel for DeToro, we are unable to accept either of these contentions. We take as our starting point, as do the parties, Powell v. Alabama, supra, which states the broad proposition that an accused has the right to counsel 'at every step in the proceedings against him.' 287 U.S. at 69, 53 S.Ct. at 64. In Powell, this was taken to mean that the accused has the right to have counsel appointed sufficiently in advance of trial

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to make adequate preparation. Later decisions of the Court have reaffirmed the importance of pre-trial preparation. 5 In Avery v. Alabama, 308 U.S. 444, 446, 60 S.Ct. 321, 322, 84 L.Ed. 377 (1940). Mr. Justice Black warned that:

'The denial of opportunity for appointed counsel to confer, to consult with the accused and to prepare his defense, could convert the appointment of counsel into a sham and nothing more than a formal compliance with the Constitution's requirement that an accused be given the assistance of counsel. The Constitution's guarantee of assistance of counsel cannot be satisfied by mere formal appointment.'

While Hamilton v. Alabama, supra, and White v. Maryland, supra, have further extended the right to counsel prior to trial, we are unable to read them as extending that right to the extent and in the manner urged by DeToro. In Hamilton, the defendant, indicted for burglary and without counsel, entered a plea of not guilty at arraignment. The Supreme Court reversed his later conviction, holding that the defendant had been entitled to counsel since, under Alabama law, arraignment is 'a critical stage in a criminal proceeding.' 368 U.S. at 53, 82 S.Ct. at 158. It was a critical stage, according to the Court, because certain defenses, specifically a plea of insanity, a plea in abatement, and a motion to quash based on an improperly drawn grand jury, not raised at arraignment, were considered waived.

In White, the accused was without counsel at a preliminary hearing. Unlike arraignment under Alabama law, a preliminary hearing under Maryland law is not, in and of itself...

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