DeToro v. Pepersack

• Decision Date: 15 April 1964
• Docket Number: No. 9246.,9246.
• Parties: Percy DeTORO, Appellant, v. Vernon L. PEPERSACK, Warden of the Maryland Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

332 F.2d 341 (1964)

Percy DeTORO, Appellant, v. Vernon L. PEPERSACK, Warden of the Maryland Penitentiary, Appellee.

No. 9246.

United States Court of Appeals Fourth Circuit.

Argued January 23, 1964.

Decided April 15, 1964.

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 Appeals³ 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 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, a critical stage in the judicial process. Defenses not raised at a preliminary hearing are not irretrievably lost and may be raised later. In the context of the particular facts of White, however, the Court was persuaded that White's preliminary hearing had been a critical stage. This was so because White's plea of guilty, taken at the preliminary hearing and subsequently withdrawn, was introduced into evidence against him during trial. On this ground, the Court reversed the conviction.

DeToro calls our attention to what he considers to be the key sentence of the case:

"For petitioner entered a plea before the magistrate and that plea was taken at a time when he had no counsel." 373 U.S. at 60, 83 S.Ct. 1051.

The district court, we think, effectively brought the above sentence into the proper perspective:

"This sentence cannot be read out of context. It must relate to the case before the Court, namely that the `plea\' was `guilty\', and it was offered in evidence at the trial." 222 F.Supp. at 624.

In our view, Hamilton and White teach that an accused is denied rights afforded him under the sixth amendment when he is subjected to an arraignment or to a preliminary hearing without the assistance of counsel, where events transpire that are likely to prejudice his ensuing trial. The Court, in each case, refused to speculate as to whether in fact prejudice actually accrued.

Thus, the thrust of Powell's admonition that an accused has a right to counsel "at every step in the proceedings against him," as borne out by subsequent decisions, including Hamilton and White, seems to be that if the effectiveness of legal assistance ultimately furnished an accused is likely to be prejudiced by its prior denial, the earlier period may be deemed a critical stage in the judicial process and a conviction obtained in such circumstances is rendered invalid.⁶ We find nothing in the Supreme Court decisions, however, that would permit us to extend the duty of the State to appoint counsel in proceedings where even the likelihood of later prejudice arising from the failure to appoint is absent.

DeToro's second contention is that even assuming arguendo that the likelihood of prejudice must be shown to require the appointment of counsel for an accused, this is such a case. DeToro's position is that in being denied the assistance of counsel at the preliminary hearings, he was unable to utilize effectively the traditional right afforded an accused to cross-examine the State's witnesses. He points out that through the process of cross-examination, the accused may be able to learn of the State's case and more intelligently to prepare a defense. Witnesses for the State, moreover, may be cross-examined at the preliminary hearing and their testimony used for impeachment purposes at the trial.⁷ DeToro points out that the right of cross-examination has long been recognized by the Maryland law as a valuable defense tool and has been employed successfully by those who have the means to retain counsel to represent them at the hearing. To deny these same rights to an indigent, he argues, is to make an invidious classification based on the ability to pay in violation of the equal protection clause of the fourteenth amendment. Compare Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956).

Maryland's preliminary hearing has as its purpose, not the ultimate determination of guilt or innocence, but the determination of whether there exists probable cause to believe the accused guilty so as to enable the magistrate to bind him over for the grand jury. As stated in Williams v. State, 214 Md. 143, 132 A.2d 605, 611 (1957):

"The purpose of a preliminary hearing before the magistrate is 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. Criminal Procedure from Arrest to Appeal, Orfield, page 67. There is no reason why the accused should be required to enter a plea at that hearing. Hochheimer, Criminal Law, 2d Ed., Section 72; Smith v. State, 210 Md. 440, 443, 124 A.2d 839."

An accused is not required to plead when brought before a magistrate, and any plea actually entered by him, under White, may not be later used by the State to his detriment. The Tenth Circuit has recently reaffirmed that a state's denial of counsel at a preliminary hearing does not violate the due process clause of the fourteenth amendment. Latham v. Crouse, 320 F.2d 120 (10 Cir. 1963); State of Utah v. Sullivan, 227 F. 2d 511 (10 Cir.1955), cert denied, Braasch v. State, 350 U.S. 973, 76 S.Ct. 449, 100 L.Ed. 844 (1956).

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