Hughes v. State, 122

Decision Date12 August 1980
Docket NumberNo. 122,122
Citation288 Md. 216,421 A.2d 69
PartiesAlfred Donnell HUGHES v. STATE of Maryland.
CourtMaryland Court of Appeals

Nancy Louise Cook, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on brief), for appellant.

Ray E. Stokes, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on brief), for appellee.

Argued before MURPHY, C.J., and SMITH, DIGGES, ELDRIDGE, Cole, Davidson, and Rodowsky, JJ.

SMITH, Judge.

We are concerned in this case with the interplay between Maryland Rule 724 stating, with exceptions not here applicable, "(t)he defendant shall be present at every stage of the trial" and Rule 746 b providing that once a trial date in a criminal case has been set any change of date must be "(u)pon motion of a party made in writing or in open court and for extraordinary cause shown (to the satisfaction of) the county administrative judge or a judge designated by him . . . ." In this case appellant Alfred Donnell Hughes was not permitted to appear with counsel at a hearing before the administrative judge to determine whether or not a continuance should be granted. We assume, arguendo, that the hearing was not a "stage of the trial" within the purview of Rule 724. However, because we are of the view that under the facts and circumstances of this case fundamental fairness required that Hughes be present at this particular hearing, we shall reverse the judgment of the Court of Special Appeals in Hughes v. State, 43 Md.App. 698, 407 A.2d 330 (1979).

The facts are relatively simple. Hughes was tried in the Criminal Court of Baltimore on numerous charges. The indictments were returned on April 13, 1978. The appearance of an assistant public defender was entered on his behalf on May 22, 1978. At that time Hughes entered a plea of not guilty and executed the form prescribed by Rule 735 on which he elected a jury trial. A number of weeks prior to September 13, 1978, trial was scheduled for that date. On the morning of September 13 the assigned attorney for Hughes advised the court that on that morning he had been approached by a private attorney; that the private attorney indicated that he had been contacted by the family of the defendant; that the family said they desired to employ that private attorney and were in a financial condition to do so; and that assigned counsel had spoken that morning to Hughes' mother who confirmed the fact that she had indeed talked to the private attorney and had finally been able to marshal her resources so as to be able to retain that private attorney. Counsel said Hughes had been advised of these developments and indicated that he wished to be represented by the private attorney who was the choice of his family. Accordingly, a motion for a continuance was made. The trial judge asked if this was the first time assigned counsel had known about the matter. He replied in the affirmative, stating that the private attorney apparently had just been so advised and that this private attorney was "obviously in no position to represent Mr. Hughes (that day) on these very serious charges." Counsel indicated that the private attorney had certain conflicts of schedule, but as soon as he possibly could he would represent Hughes.

Maryland Rule 746 a as it then existed stated: 1

a. General Provision.

Within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court pursuant to Rule 723 (Appearance Provision for or Waiver of Counsel), a trial date shall be set which shall be not later than 120 days after the appearance or waiver of counsel or after the appearance of defendant before the court pursuant to Rule 723 (Appearance Provision for or Waiver of Counsel).

b. Change of Trial Date.

Upon motion of a party made in writing or in open court and for extraordinary cause shown, the county administrative judge or a judge designated by him may grant a change of trial date.

Pursuant to that rule the trial judge stated that he had no authority to grant or deny a postponement and suggested to counsel that they see the administrative judge immediately. Whereupon counsel for Hughes said to the court:

MR. LIBOWITZ: Your Honor, on the record, since before my client is taken away, I think, as far as my client is concerned, postponement request is certainly a critical stage in the proceedings against him. It has been indicated, the family has indicated that at this time they are financially able to secure private counsel of their own choice and desirous of same. I would ask that my client be in a position to be present during any postponement request before the administrative judge.

The trial judge indicated he would "leave that up to the jail guard." Thereafter counsel returned to the courtroom and reported relative to the hearing before the administrative judge on the issue of postponement. The assistant State's attorney said:

Your Honor, Judge Karwacki denied the postponement. Mr. Libowitz and Mr. Carey and myself met with him about fifteen, twenty minutes ago. The situation was made known to him. He denied both postponement requests by both Defendants and ordered that the case proceed to trial today. He also denied a motion made by Mr Carey, Mr. Libowitz to have the Defendants present at the hearing of the request and on the postponement issue.

(Mr. Carey was at that time an assistant public defender who was representing Hughes' codefendant.) Counsel for Hughes added:

I would indicate, Your Honor, that the reasons for the postponement were as indicated to the Court on the record, the Court here.

The case proceeded to trial before a jury. Hughes was found guilty of two counts of assault with intent to murder, two counts of use of a handgun in the commission of a crime of violence, robbery with a deadly weapon, kidnapping, and unlawfully carrying or transporting a handgun. It is the contention of Hughes that the hearing before the administrative judge was a stage of the trial within the meaning of Rule 724 and thus that the defendant was entitled to be present. 2

The Court of Special Appeals affirmed because of the absence of a record of that which transpired before the administrative judge. It pointed out that in Langrall, Muir & Nopp'r v. Gladding, 282 Md. 397, 401, 384 A.2d 737, 740 (1978), we had said, "(I)t is the responsibility of the aggrieved party, the party claiming abuse, to preserve his objection for review." However, by way of what was termed "dicta," Judge Lowe said for that court, "(I)t would seem that an extraordinary cause hearing may be considered of such importance especially with regard to the underlying purpose that it would at the very least be sufficiently critical to require appellant's presence under Md.Rule 724 a." He went on to note for the court:

We are apprised that the Supreme Bench of Baltimore City has adopted the post-Hicks administrative policy of requiring all defendants to be present at all requests for scheduling change under Md.Rule 746. While this cumbersome procedure, which obviously causes security and other problems, is questionable, that court has taken Hicks as a warning flag, and chosen not to jeopardize future proceedings with technical oversights. (Id. 43 Md.App. at 711, 407 A.2d at 338 (emphasis in original).)

(The reference is to State v. Hicks, 285 Md. 310, 403 A.2d 356 (1979).) It would appear in the light of the procedure reported by the Court of Special Appeals relative to cases in Baltimore City that the problem presented in this case would not arise there today.

In this instance we believe the request by counsel to the trial judge, which we have previously quoted, and the report back of the proceedings before the administrative judge provide sufficient record of the request on behalf of Hughes and the denial of that request for appellate review.

Maryland has long recognized the common law right to be present at trial and to be confronted by one's accusers. For instance, in Johns v. State, 55 Md. 350 (1881), the Court rejected a defendant's contention that the admission of a Comptroller's certificate showing the amount in which defendant had defaulted as a state tax collector violated his right of confrontation. In so doing Judge Alvey articulated the gist of the right for the Court:

It is only where the prosecution is to be maintained by the testimony of living witnesses that they are required to be produced in Court, confronted with the accused, and deliver their testimony under the sanction of an oath, and be subject to cross-examination. In other words, no witness shall give his testimony in secret, or out of the presence of the accused; and no party shall be put upon his trial upon mere hearsay evidence; but the witness shall be produced, and be subject to all the tests that the law has devised for the full disclosure of the truth. (Id. at 360.)

In Dutton v. State, 123 Md. 373, 91 A. 417 (1914), the Court based its observation that "(u)nder no circumstances should a trial be so conducted as to have the appearance of a Star Chamber proceeding" on Maryland Declaration of Rights, Art. 21. Chief Judge Boyd there explained for the Court the purpose of the provision:

It is quite possible that one on trial may be able to make valuable suggestions to his attorney during the examination of witnesses, particularly the prosecuting witness in a case of this kind, as it matters not how well an attorney may have prepared for the trial of a case, it is impossible for him to anticipate all that may be said, or to know all the details a witness on the opposite side will testify to. It might be that in the course of her examination in the presence of the accused the prosecuting witness would discover that she had made a mistake in the identity of the party committing the crime. (Id. at 389, 91 A. 417, 423.)

More recently, but prior to the adoption of Maryland Rule 775, the predecessor to our present rule, in Midgett v....

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    ...and "he may well have had additional information to offer to the court." Therefore, he argues, under our holding in Hughes v. State, 288 Md. 216, 421 A.2d 69 (1980), his absence at this stage of the proceedings was In Hughes, we held that a defendant had the right to be present when the adm......
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    ...the exclusive power to postpone the trial date of a criminal case in the administrative judge of the court." In Hughes v. State, 288 Md. 216, 229, 421 A.2d 69 (1980), Judge Smith for this Court pointed out that, under § 591 and Rule 746, it is the administrative judge who exercises the disc......
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