Collins v. State, 573

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

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.

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[278 A.2d 312] 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

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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, [278 A.2d 313] 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

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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

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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 [278 A.2d 314] 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

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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...