Smith v. State, 107

• Decision Date: 01 September 1985
• Docket Number: No. 107,107
• Parties: Shirley A. SMITH v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 625

64 Md.App. 625

498 A.2d 284

Shirley A. SMITH v. STATE of Maryland.

No. 107, Sept. Term, 1985.

Court of Special Appeals of Maryland.

Oct. 7, 1985.

Mark Colvin, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on brief), for appellant.

Carmina Szunyog Hughes, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Kurt L. Schmoke, State's Atty. for Baltimore City and Jonathan Shoup, Asst. State's Atty. for Baltimore City, Baltimore, on brief), for appellee.

Submitted before MOYLAN, GARRITY and ADKINS, JJ.

ADKINS, Judges.

In January 1984, appellant Shirley A. Smith was convicted of a handgun offense. She received a three-year sentence, all but four months suspended in favor of three years' probation. Among the conditions of probation were requirements that Smith report regularly to her probation agent, obey all laws, and participate in a drug screening program. In October 1984, Smith was charged with violating those conditions of probation. The trial court found Smith in violation, revoked probation, and reinstated the original sentence less credit for the four months served.

On appeal from that disposition, Smith contends that

1. She was denied due process of law because the trial judge directed his law clerk to investigate the allegations against her and in revoking probation relied on that investigation as revealed by the law clerk's testimony at the revocation hearing;

2. The trial judge erred in refusing to allow her to rebut the law clerk's testimony; and

3. The trial judge found her guilty of violation of probation without allowing her counsel to make a closing argument.

We reverse on the first issue and thus do not reach the second and third.

Turning to the record before us, we again note that Smith was charged with violation of three conditions of probation. As to one of these, there really was no contest. Smith admitted that she had violated the law. She had been arrested for and, it seems, convicted of possession of heroin. Smith and her probation agent present somewhat differing versions about Smith's participation in a drug screening program and about the screening results. As to the third violation--failure to report to the agent--the agent listed a number of instances of non-reporting. Smith did not, for the most part, contradict this testimony. Instead, she advanced reasons for her non-appearance. At the time of the revocation hearing, she was eight and one-half months pregnant. Her pregnancy, she explained, had been a difficult one, complicated by edema that had forced her to stop working. She produced a doctor's certificate attesting to the edema and prescribing "bedrest (as much as possible)." It was her position that this health problem had caused the non-reporting. She claimed that she had given the probation agent "doctors [sic ] slips" each time she missed an appointment with him.

At the conclusion of evidence presented by the State and the defense, the judge asked the prosecutor whether he had any rebuttal. Upon receipt of a negative response, the judge announced "I am going to call [my law clerk] to the stand ... with respect to the contact the defendant has had with me directly." The law clerk was then examined by the judge. That examination revealed that on November 8, 1984, Smith had called the law clerk from the Baltimore City jail where Smith had been incarcerated for violation of probation because of failure to report. Smith told the clerk she had failed to report "because of bleeding problems related to her pregnancy."

The law clerk went on to testify that at Smith's request, she had called one Pat Slater at University Hospital. Recounting hearsay and sometimes double hearsay from Ms. Slater and others, the clerk in substance said that Smith had not had bleeding problems connected with her pregnancy, and that the problems she had had were related to heroin abuse. ¹

At the conclusion of the law clerk's testimony, trial counsel for Smith sought to recall his client for the purpose of "verifying the bleeding problems." This request was summarily denied. Without further ado (i.e. without hearing closing argument, which was not requested) ² the judge pronounced Smith guilty. He went on to say (in response to Smith's protestations that she had testified truthfully at the hearing):

I don't believe you now and I didn't believe you then [at sentencing on the underlying handgun charge] and I can't believe anything you said and that is why I carefully had it checked by my law clerk to determine whether or not there was anything valid to your explanations and as usual the explanation from the doctor at the hospital, the nurse at University and from the social worker, all of whom were called [by telephone], is the same. ³

The judge concluded by revoking Smith's probation.

Smith now contends that she was denied due process because the judge, through his law clerk, investigated allegations relating to the violation of probation ex parte and relied on the information so obtained to revoke probation. The contention is a forceful one. But before we reach it, we must decide whether it has been preserved for our review. The problem arises because Smith voiced no objection whatsoever to the law clerk's testimony, nor did she ask the judge to disqualify himself. ⁴ Since "[t]his Court will not ordinarily decide any point or question which does not plainly appear by the record to have been tried and decided by the lower court", Md.Rule 1085, it at first blush appears that the matter is not properly before us. Scott v. State, 43 Md.App. 323, 327, 405 A.2d 320 (1979) (in absence of objection, claim of error based on ex parte communication of sentencing recommendation to trial judge not preserved for review). ⁵

The principle undergirding the rule is that a trial judge may be reversed only for prejudicial error.

[E]rror in a trial court may be committed only by a judge, and only when he rules, or, in rare instances, fails to rule, on a question raised before him in the course of a trial.... Appellate courts look only to the rulings made by a trial judge, or to his failure to act when action was required, to find reversible error.

Howell v. State, 56 Md.App. 675, 680, 468 A.2d 688 (1983), cert. denied, 299 Md. 426, 474 A.2d 218 (1984), cert. denied, --- U.S. ----, 105 S.Ct. 520, 83 L.Ed.2d 408 reh. den. --- U.S. ----, 105 S.Ct. 942, 83 L.Ed.2d 954 (1985) (quoting Braun v. Ford Motor Co., 32 Md.App. 545, 548-549, 363 A.2d 562 (1976)) [emphasis added in Howell ]. Thus, "[e]ven ... errors of Constitutional dimension may be waived by failure of counsel to interpose timely objection at trial...." Medley v. State, 52 Md.App. 225, 448 A.2d 363 (1982).

Nevertheless, the prohibition of Rule 1085 (and its counterpart, Md.Rule 885) is not absolute. Grant v. Zich, 53 Md.App. 610, 621 n. 1, 456 A.2d 75 (1983), aff'd 300 Md. 256, 477 A.2d 1163 (1984). Its use of the adverb "ordinarily" implies that there may be extraordinary circumstances in which review will be granted despite the lack of a ruling at the trial level. Taub v. State, 296 Md. 439, 441-442, 463 A.2d 819 (1983). For example, in Coates v. State, 180 Md. 502, 25 A.2d 676 (1942), an uncounseled youthful defendant was convicted of robbery. Despite the fact that he had not requested counsel (and despite the fact that Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) had not then been decided) the Court of Appeals reversed, holding that under the circumstances due process required the appointment of counsel. In Mitchell v. State, 58 Md.App. 113, 472 A.2d 494 (1984), we reversed a revocation of probation because the failure to notify the probationer of his alleged violations was a denial of due process as well as a violation of former Md.Rule 775 c. The issue had not been raised below. Nor had it in Charles J. Cirelli & Sons, Inc. v. Harford County Council, 26 Md.App. 491, 338 A.2d 400 (1975), where we reversed because of "a blatant denial of procedural due process." Id. at 497, 338 A.2d 400.

In the final analysis, the question of whether to review an issue not raised and decided below is discretionary with the appellate court. Booth v. State, 62 Md.App. 26, 38, 488 A.2d 195 (1985). The Court of Appeals has observed that this discretion should be exercised in favor of review when the "unobjected to error [is] compelling, extraordinary, exceptional or fundamental to assure the defendant a fair trial." State v. Hutchinson, 287 Md. 198, 203, 411 A.2d 1035 (1980). We hold that this is such a case. For reasons we shall now discuss, Smith was denied the right to have her guilt or innocence of probation violation decided by an impartial tribunal. That right was fundamental to assure her a fair trial and its denial, as shown by the record, was both extraordinary and exceptional.

A "defendant is entitled to present and conduct his defense unhampered by the judge's idea of what that defense is or how it should be presented." Marshall v. State, 291 Md. 205, 214, 434 A.2d 555 (1981). What is even more fundamental, the defendant is entitled to "an impartial judge." Id. As we pointed out (in the context of a recusal argument) " 'there nonetheless do exist those times when, to protect the defendant and the public's right to a fair trial, and to ensure that the trial judge's impartiality cannot reasonably be questioned, the judge must remove himself from sitting as the trier of fact....' " In Re George G., 64 Md.App. 70, 75, 494 A.2d 247 (1985) (quoting Brent v. State, 63 Md.App. 197, 205-206, 492 A.2d 637 (1985)). Moreover, although the full sweep of constitutional due process does not extend to probation revocation hearings, part of the process that is due in these proceedings is the right to an impartial tribunal. In Morrissey v. Brewer, 408 U.S. 471 at 489, 92 S.Ct. 2593 at 2604, 33 L.Ed.2d 484 (1972), the Supreme Court held that the minimum due process requirements for parole...