Hebron v. State

Decision Date06 October 1971
Docket NumberNo. 102,102
Citation13 Md.App. 134,281 A.2d 547
PartiesCharles James HEBRON v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

Robert P. Conrad, Baltimore, for appellant.

Gary Melick, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Howard L. Cardin, State's Atty., and Charles O. Fisher, Jr., Asst. State's Atty. for Baltimore City on brief, for appellee.

Argued before MORTON, ORTH and POWERS, JJ.

ORTH, Judge.

In asking us to set aside the judgments entered in the criminal action against him, Charles James Hebron does not deny that he broke into the dwelling of Rosalie Burrell and stole her goods as was found at a bench trial in the Criminal Court of Baltimore. Rather he complains because constitutional rights accruing to him were violated in arriving at the convictions. He contends that his right to enjoy the assistance of counsel for his defense guaranteed by Amendment VI to the Constitution of the United States and his right to be secure in his person, house, papers and effects against unreasonable searches and seizures guaranteed by Amendment IV were denied him.

Hebron feels that absence of counsel at a pre-indictment proceeding in the Municipal Court of Baltimore City violated his Sixth Amendment rights. That proceeding, he urges, was in fact a preliminary hearing within the ambit of Coleman and Stephens v. State of Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387, decided 22 June 1970. But he argues, even if it were not a preliminary hearing but simply a hearing to set bail as the lower court found, the dictates of Coleman would apply to require that he have the assistance of counsel. The result would be that the lower court erred in denying upon a pretrial hearing a motion filed by him in proper person to dismiss the indictment. Hebron alleges that his right to be secure against unreasonable searches and seizures was violated when evidence was obtained by the police incident to his arrest. He contends that his arrest was not shown to be on probable cause and was therefore illegal. As the arrest was illegal, the seizure of evidence incident thereto was unreasonable, and if the seizure was unreasonable the evidence was inadmissible under the judicially created exclusionary rule of the Fourth Amendment. See Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. It would follow that the lower court erred in overruling objection to the receipt of testimony relating to what was seized by the police. 1

I

The question as to right to counsel first requires determination of the nature of the proceeding conducted in the Municipal Court of Baltimore City on 16 September 1970. It was either a preliminary hearing or a hearing to set bail. If it was a preliminary hearing Hebron would have been entitled to the assistance of counsel. If it was a bail hearing the further question arises whether he was entitled to the assistance of counsel at such a proceeding.

A

At the pretrial hearing on the motion to dismiss the indictment there was evidence adduced tending to show that Hebron was arrested 4 September 1970, the same day he was alleged to have committed the crimes. The following day he was taken before a Municipal Court judge for what Hebron said was a preliminary hearing. It was postponed upon his request for counsel. He appeared again without counsel before a Municipal Court judge on 16 September. With respect to this proceeding the lower court found that it was a bail hearing and not a preliminary hearing. 2 In so ruling the court made factual findings. It found that no testimony or evidence relevant to the substantive case against hebron was given to the hearing judge, that no identification of Hebron was made, and that no pleas were entered by him. The Municipal Court Docket designated the proceeding as 'Bail Hearing ONLY' and bail was set at $10,000 on the charge. A presentment was filed on 30 September and the indictment returned on 8 October. The factual findings were supported by credible evidence adduced. We cannot say the judgment of the lower court that the proceeding in the Municipal Court on 16 September was only a hearing to set bail was clearly erroneous on the evidence before it. Rule 1086.

B

Coleman held that the assistance of counsel at a preliminary hearing such as conducted in Maryland was constitutionally mandated. 3 The rationale of the holding was set out in the opinion of Mr. Justice Brennan in announcing the judgment of the Court. Nothing that the principle of Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 and succeeding cases requires that the Court scrutinize any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant's basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself, the concluded that the guilging hand of counsel at the preliminary hearing was essential to protect the indigent accused against erroneous or improper prosecution. He spelled out the reasons, 399 U.S. 9, 90 S.Ct. 2003:

'First, the lawyer's skilled examination and cross-examination of witnesses may expose fatal weaknesses in the State's case that may lead the magistrate to refuse to bind the accused over. Second, in any event, the skilled interrogation of witnesses by an experienced lawyer can fashion a vital impeachment tool for use in cross-examination of the State's witnesses at the trial, or preserve testimony favorable to the accused of a witness who does not appear at the trial. Third, trained counsel can more effectively discover the case the State has against his client and make possible the preparation of a proper defense to meet that case at the trial. Fourth, counsel can also be influential at the preliminary hearing in making effective arguments for the accused on such matters as the necessity for an early psychiatric examination or bail.'

It was the inability of the indigent accused on his own right to realize these advantages of a lawyer's assistance which compelled the conclusion that the preliminary hearing was a 'critical stage' of the criminal process at which the accused is as much entitled to aid of counsel as at the trial itself. 4

Except that counsel may be influential in making effective argument as to the necessity of bail, we do not see how the other reasons set out in Coleman apply to a hearing the purpose of which is only to set bail and at which, as here, no witnesses were offered as to the substantive offense who could be examined or cross-examined, either to expose a fatal weakness in the State's case or to fashion a vital impeachment tool at trial or to preserve testimony favorable to the accused and no case was offered by the State for the accused's counsel to discover and prepare for. We do not believe that the absence of counsel for Hebron at the hearing derogated from his right to a fair trial. We do not feel that the proceeding to set bail as here conducted was a critical stage of the criminal proceedings within the constitutional concept of that term contemplated by Coleman. We are not persuaded to extend the Coleman ruling to encompass it. We conclude that the assistance of counsel was not constitutionally mandated. We hold the lower court did not err in denying the motion to dismiss the indictment. 5

II

The articles Hebron sought to suppress were found, except for a bankbook, in a back second floor bedroom of 1503 Fulton Avenue. A television set was beside the bed. Clothing-'a fur coat, a maroon leather coat, rust colored wet-look plastic coat, and seven pairs of trousers, various colors, and six men's Italian knit shirts, one rea wet-look shirt, extra large size, and black leather vest'-were on the bed. It seems that the bankbook was recovered from the person of Hebron-'(i)t was taken from the defendant.' The bankbook was for an account in the Provident Bank in the name of Rosalie Burrell, 1706 North Dukeland Street. The circumstances under which the articles were seized were recounted by Detective William Perry, testifying for the prosecution and Detective H. Baynes, testifying for the defense. The officers, members of the Baltimore City Police Department, received a 'lookout' over the radio while on duty in their cruiser on 4 September 1970. It is not clear from the record before us exactly what was in the bulletin. Perry at first testified: 'We received, there was a broadcast through police radio to be on the look-out for a Diamond Cab No. 177, and it had two male occupants, and they had stolen goods, a television and some clothing.' Later in his testimony the court asked him to tell again 'just what was the information that you received by the police radio look-out?' The transcript reads:

'THE WITNESS: It came over the police radio to be on the look-out for a Diamond Cab, No. 177.

THE COURT: What other information in addition to that?

THE WITNESS: It said that there were two male occupants, and they had supposedly broken into a house, and this is all the information that came over the radio.

THE COURT: Was there my mention of, or description of the property.

THE WITNESS: Yes. It stated that the clothing and television.'

On re-cross it was elicited that the bulleetin did not indicate when the goods had been stolen. Perry agreed that he had no independent knowledge that a crime had been committed or a burglary reported. 'I was only going on the information by the police radio. * * * They stated (the television set) had been taken, in the supposed burglary. Now, where the information came from, I don't know.' Baynes added little with respect to the contents of the broadcast. Called by Hebron, he said: '(W)e received a call on the radio that a Diamond Cab and suspects in it, were supposed to have stolen goods * * *.' That matter was not further pursued with him. Shortly after hearing the broadcast the officers saw Diamond Cab...

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17 cases
  • Richardson v. State of Maryland, Civ. A. No. 20868.
    • United States
    • U.S. District Court — District of Maryland
    • 7 Marzo 1975
    ...Maryland Penitentiary, 401 F.2d 474, 477 (4 Cir. 1968); Richardson v. Snow, 340 F. Supp. 1261, 1263 (D. Md. 1972); Hebron v. State, 13 Md.App. 134, 146, 281 A.2d 547 (1971). In Hebron v. State, 13 Md. App. 134, 146, 149, 281 A.2d 547, 553, 555 (1971), the Maryland Court of Special Appeals a......
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    ...yellow and black automobile, that description must have been validly gathered by Officer Lucas back at the crime scene. Hebron v. State, 13 Md.App. 134, 281 A.2d 547; Sands v. State, 9 Md.App. 71, 262 A.2d 583; Peterson v. State, The Assistant State's Attorney properly sought to explore and......
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