Collins v. State

• Decision Date: 09 June 1971
• Docket Number: No. 573,573
• Citation: 278 A.2d 311,12 Md.App. 239
• Parties: John S. COLLINS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 239

12 Md.App. 239

278 A.2d 311

John S. COLLINS v. STATE of Maryland.

No. 573.

Court of Special Appeals of Maryland.

June 9, 1971.

Alan H. Murrell, Baltimore, for appellant.

Clarence W. Sharp, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Julian B. Stevens, State's Atty. for Anne Arundel County and David K. Poole, Jr., State's Atty. for Washington County, on brief, for appellee.

Argued before MURPHY, C. J., and ORTH and MOYLAN, JJ.

ORTH, Judge.

John S. Collins was convicted of nine crimes at a bench trial in the Circuit Court for Washington County on the testimony of a man then dead. The Board of License Commissioners for Anne Arundel County had the authority to grant liquor licenses. The Chairman of the Board was David B. Frye and David L. Sullivan was a member of the Board. Collins was attorney to the Board. On 9 May 1969 the Grand Jury for Anne Arundel County returned five indictments containing a total of nine counts presenting that Collins had bribed Frye and Sullivan with respect to two applications for the grant of liquor licenses and that he and one Arthur W. Meleski had conspired together and with Frye to bribe Frye and Sullivan regarding one of the applications. ¹ Upon suggestion for removal the indictments were sent to Washington County, consolidated, and came on for trial on 22 June 1970. Sullivan, the principal witness for the State, had died on 2 August 1969 but the State had perpetuated his testimony by taking his deposition on 19 July 1969. The deposition was received in evidence at the trial. Collins claims its admission was error.

It is abundantly clear that in Maryland depositions can be taken in criminal cases only within the limitations of the authority granted by constitutional or statutory provisions or by the concurrent consent of the accused and the prosecution. There has never existed in this State an inherent power in the trial courts to direct the taking of depositions in criminal cases, nor does such power exist today. Whatever authority the courts of Maryland have in this area in conferred by Maryland Rule 727 (Depositions) and those rules in Chapter 400 of the Maryland Rules of Procedure (Depositions and Discovery) which Rule 727 expressly makes applicable to criminal causes. Kardy v. Shook, J., 237 Md. 524, 207 A.2d 83; Young v. State, 90 Md. 579, 45 A. 531.

Rule 727, pertaining to depositions in criminal causes, first became effective on 1 January 1950. 'It was the considered opinion of the Court (of Appeals), at the time of the adoption of Rule 727, that depositions in criminal cases should only be taken in accordance with the provisions contained therein.' Kardy v. Shook, J., supra, 237 Md. at 540, 207 A. at 92. ² Thus, lacking the concurrent consent of the accused and the State, a deposition in a criminal cause may be properly taken only as provided by Rule 727. It is clear from the record before us that Collins did not consent to the deposing of Sullivan and we do not take it that the State suggests that he did. The inquiry, therefore, is whether the deposition was obtained in accordance with the provisions of Rule 727.

Rule 727 expressly gives an accused the right to be present when a deposition is taken at the instance of the State. Section b provides: 'If a deposition is taken at the instance of the State, the accused shall have the right to be present at the taking thereof * * *.' ³ Rule 775 (Presence of Accused) reiterates: 'The accused shall have the right to be present at the taking of a deposition taken at the instance of the prosecution.' We think that the right to be present when a witness is deposed is of constitutional dimension and that the provisions of the Rules so stating are merely declaratory of a right guaranteed by both the United States and Maryland constitutions. Amendment VI to the Constitution of the United States states: 'In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him; * * *.' In the Declaration of Rights of the Constitution of Maryland the people of the State of Maryland, 'grateful to Almighty God for our civil and religious liberty, and taking into our serious consideration the best means of establishing a good Constitution in this State for the sure foundation and more permanent security thereof,' declared, in Article 21, 'That in all criminal prosecutions, every man hath a right to be * * * confronted with the witnesses against him; * * *' and added also 'a right * * * to examine the witnesses for and against him on oath; * * *.' Since a deposition is the testimony of a witness transcribed for use in court in the absence of the witness, ⁴ when a witness is deposed by the State, the constitutional right of the accused to confront him can only be satisfied if he has the right to be present at the taking of the deposition. Further, we think that the right to presence by the accused at the taking of a deposition arises also from his right to be present at every stage of his trial. This was a fundamental right at common law preserved in this State by Article 5 of the Declaration of Rights and stated with particularity by another provision of Rule 775. ⁵ When the deposition is used at the trial proper as contemplated, the only opportunity for the accused to be confronted with the witness is at the taking of the deposition. Thus it is patent that the taking of the deposition must be considered to be a stage of the trial. ⁶ See State v. Saul, 258 Md. 100, 265 A.2d 178. The right to be present at every stage of the trial is personal to the accused and cannot be waived by his counsel. Young v. State, 5 Md.App. 383, 389, 247 A.2d 751. And, since the right is constitutional, an effective waiver by the accused must be within the rule articulated in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, that is, an intentional relinquishment or abandonment of a known right or privilege. This must be clearly established. Presuming waiver frm a silent record is ordinarily impermissible for acquiescence in the loss of fundamental rights may not be presumed. On the contrary every reasonable presumption against waiver must be indulged. Moore a/k/a Smith v. State, 7 Md.App. 330, 334, 254 A.2d 717, citing Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314, Johnson v. Zerbst, supra, and Wayne v. State, 4 Md.App. 424, 243 A.2d 19.

Collins was not present when Sullivan's deposition was taken. The question is whether he effectively waived his right to be present.

On 11 July 1969, a Friday, at 1700 hours, on motion by the State, the Circuit Court for Anne Arundel County by E. Mackall Childs, J., ordered that the deposition of Sullivan be taken upon oral examination at the North Arundel Hospital at 4:00 P.M. on 14 July before William R. Gore, Notary Public, to continue from day to day until completed, 'provided that service of a copy of the aforegoing Motion and this Order be made by the Sheriff of Annue Arundel County upon John S. Collins, 128 Cedar Road, Severna Park, Maryland and his attorney of record, Alan H. Murrell, home address of 5102 Brook Green Road, Baltimore, Maryland and a business address of Suite 1220 Fidelity Building, Charles and Lexington Streets, Baltimore, Maryland 21201 on or before Sunday, July 13, 1969 at 4:00 P.M.' On 14 July the State filed an amended Motion in which was set out that Mr. Murrell was served, 'however, the defendant, John S. Collins was not served, therefore, the Deposition ordered for July 14, 1969 was not held.' The State moved that the deposition be taken at 1:00 P.M. on 19 July, a Saturday. On this Motion the court, George Sachse, J., on 14 July ordered the taking of the deposition as requested 'provided that a copy of the aforegoing amended Motion and this Order be mailed to the defendant, John S. Collins at his home address listed on the bond filed in this Court being 128 Cedar Road, Severna Park, Maryland and to the defendant's attorney of record Alan H. Murrell, 1220 Fidelity Building, Charles and Lexington Streets, Baltimore, Maryland 21201 on July 14, 1969.' The State's Attorney certified that the amended motion and order thereon were mailed to Collins and to his attorney on 14 July. On Friday July 18 at 9:13 A.M. Collins, by his attorney, filed a motion to quash the order of 14 July. It alleged that he stood indicted and had filed various motions pertaining to the indictments, including discovery and particulars; that no specific trial date had been scheduled by the State; that the order of 11 July had not been served on Collins 'due to his absence from the State of Maryland' and his attorney had been served at 4:00 P.M. on Sunday 13 July at his home; that the order of 14 July was received in counsel's office at 9:30 A.M. on 15 July, postmarked 14 July at 1:00 P.M.; that while the motion to take Sullivan's deposition alleged that Sullivan's demise was imminent but that he was lucid and capable of giving testimony, although 'receiving oxygen and suffering from the agony of terminal cancer,' it did not contain 'any reference to either the legal basis or the authenticity of the allegations concerning the alleged physical and mental condition of Sullivan;' that the right of Collins to be present at the taking of the deposition 'means, among other things, the right to challenge the qualifications of the witness and, specifically, his actual competency before the witness is sworn.' Collins prayed the court to quash the motion and order of 14 July; to postpone the deposition until such time as Sullivan's actual competency as a witness was determined by the court; to order Sullivan to be examined by two physicians to determine his competency to testify; and to grant a formal hearing 'wherein testimony can be taken and evidence received concerning the actual mental and physical status of David L. Sullivan and his competency as a witness.' The docket entries read that on the same day the ...