Application of DeToro

Decision Date17 October 1963
Docket NumberCiv. A. No. 14759.
Citation222 F. Supp. 621
PartiesIn the Matter of the Application of Percy DeTORO for a Writ of Habeas Corpus.
CourtU.S. District Court — District of Maryland

William J. McCarthy, Baltimore, Md., for petitioner.

Thomas B. Finan, Atty. Gen., of Maryland, and Franklin Goldstein, Asst. Atty. Gen., for respondent

NORTHROP, District Judge.

Percy DeToro, petitioner herein for a writ of habeas corpus, was found guilty of murder in the first degree by the Criminal Court of Baltimore City sitting without a jury. He was sentenced to death.

DeToro's state remedies having been exhausted, this court stayed his execution pending a hearing at which the petitioner was present, represented by able counsel; arguments and briefs were submitted by the parties.

Petitioner presents three grounds for the issuance of the writ:

1. A statement was taken from him without affording him an opportunity to consult with legal counsel, which statement was admitted into evidence;

2. There was suppression of the fact of the finding of, and failure to examine for evidence, certain scissors which petitioner alleged were used by the deceased to threaten him at the time that he committed the offense; and

3. Since he was not afforded counsel when he was called on to plead to the capital charge against him at his preliminary hearings, his conviction and sentence constitute a nullity.

Since no further facts were developed at the hearing before this court in reference to the first two contentions of petitioner, and no points or authorities submitted, this court must consider these points as adequately disposed of by Judge Shirley B. Jones, Criminal Court of Baltimore City, in her opinion, dated December 18, 1962, P. C. Petition No. 422, denying petitioner relief under the Uniform Post Conviction Procedure Act, Article 27, Annotated Code of Maryland (1957), Sections 645A-645J, setting out her conclusions buttressed by historical facts.

This leaves the principal contention which is based on the proposition that DeToro was not represented by counsel at the two preliminary hearings before the committing magistrate.

DeToro was taken before a magistrate on January 23, 1961, and again on February 7, 1961, at the Central Police Station in Baltimore, Maryland, for preliminary hearings. He was called on to plead to the offense charged without being afforded the opportunity to consult with, retain or be furnished with legal counsel at these preliminary hearings. At both hearings he pleaded not guilty.

Petitioner argues that language in White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963), and in Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961), supports his position that the taking of his plea at the preliminary hearings, when he did not have counsel, violated his constitutional right to representation at all stages of the criminal procedure. In further support of his allegation, he cites Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398 (1945), and Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932).

To do justice to petitioner's contentions, it is necessary to give careful consideration to the opinions referred to by him. After comparing White v. Maryland to Hamilton v. Alabama, and after close study of White, we feel that the petitioner's contention cannot prevail.

Hamilton was the progenitor of White. In the former, the Supreme Court through Mr. Justice Douglas held that arraignment in Alabama is so critical a stage of Alabama criminal procedure that lack of counsel at the arraignment required reversal of the conviction. The defendant, Hamilton, gave a not-guilty plea at the "arraignment" but that proceeding was deemed "critical" since, by Alabama law, certain defenses not then raised, were considered waived. In addition, the Supreme Court in reversing felt that it was unnecessary to determine if, in fact, Hamilton inadvertently waived a defense to the charge against him and was thus prejudiced by the absence of counsel at the arraignment.

The facts in Hamilton are not present here. Alabama's arraignment cannot be equated with Maryland's preliminary hearing. The defense of insanity must be pleaded at the arraignment in Alabama or the defense is lost. Pleas in abatement must be made at that time. Motions to quash based on systematic exclusion for race from grand juries or on the ground that the grand jury was otherwise improperly drawn must be made at the arraignment. Hamilton v. Alabama, supra, 368 U.S. p. 52, 82 S.Ct. p. 158, 7 L.Ed.2d 114.

In Maryland, however, a preliminary hearing is held for the purpose of

"determining whether there is probable ground to believe the accused guilty. The magistrate, therefore, can only commit the accused for appearance before the grand jury, subject to bail under certain circumstances, or discharge him. That hearing is primarily for the benefit of the accused, insuring him against being committed for action by the grand jury on charges which are groundless." Williams v. State, 214 Md. 143, 154, 132 A.2d 605 (1957), citing Orfield, Criminal Procedure from Arrest to Appeal, page 67.

Just as in the federal practice before a Commissioner, the Maryland preliminary hearing requires no defenses be made lest they be waived. It is not, in and of itself, critical such as the Alabama arraignment. The critical stage of the criminal proceedings in Maryland, again analogous to the federal practice, is not before arraignment. All defenses reaching back to the arrest may be raised at the Maryland arraignment. The preliminary hearing in no way can act as a stage of the criminal process during which a defendant may waive...

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17 cases
  • Boone v. State
    • United States
    • Court of Special Appeals of Maryland
    • September 28, 1967
    ...a colloquy between the trial court and counsel on the holdings in Hyde v. State, 240 Md. 661, 215 A.2d 145 (1965) and Application of DeToro, D.C., 222 F.Supp. 621, aff'd DeToro v. Pepersack, 4 Cir., 332 F.2d 341, the State requested permission to re-open the case on the Motion in order that......
  • State v. Jackson
    • United States
    • United States State Supreme Court (New Jersey)
    • July 31, 1964
    ...supra, 82 N.J.Super. 409, 197 A.2d 876. See also United States ex rel. Cooper v. Reincke, 333 F.2d 608 (2 Cir. 1964); In re De Toro, 222 F.Supp. 621 (D.Md.1963); Thompson v. Warden of Maryland Penitentiary, 233 Md. 643, 197 A.2d 138 (1964); State v. White, 243 S.Car. 238, 133 S.E.2d 320 (19......
  • Blake v. State
    • United States
    • United States Court of Appeals (Georgia)
    • April 15, 1964
    ...before a commiting magistrate has been held not to be a denial of constitutional rights under the White decision. Application of DeToro, 222 F.Supp. 621 (D.C.Md.1963). The DeToro opinion states that in Maryland '[A] preliminary hearing is held for the purpose of 'determining whether there i......
  • Application of DeToro, Civ. A. No. 16804.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • November 16, 1965
    ...hearing in Maryland is not a critical stage of the criminal proceedings; thus, the right to counsel does not attach. Application of DeToro, 222 F.Supp. 621 (D.Md.1963), aff'd sub nom. DeToro v. Pepersack, 332 F.2d 341 (4 Cir.), cert. denied 379 U.S. 909, 85 S.Ct. 198, 13 L.Ed.2d 181 2 Russo......
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