Thompson v. State
| Decision Date | 04 December 1978 |
| Docket Number | No. 23,23 |
| Citation | 284 Md. 113,394 A.2d 1190 |
| Parties | Alfred THOMPSON v. STATE of Maryland. |
| Court | Maryland Court of Appeals |
Robert R. Michael, Assigned Public Defender, Bethesda, for appellant.
Diane G. Goldsmith, Asst. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen., and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellee.
Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, ORTH and COLE, JJ.
On 6 October 1977, in the District Court of Maryland, in Montgomery County, Alfred Thompson was convicted of shoplifting and two charges of assault and battery. Sentence was imposed on 13 December, and Thompson appealed to the Circuit Court for Montgomery County. He was released pending the de novo trial on appeal upon posting bond furnished by a corporate surety in the amount of $7500. At a court trial on 26 April 1978, in the Circuit Court for Montgomery County, Mitchell, J. presiding, he was again convicted of the charges. We granted his petition for the issuance of a writ of certiorari. We limited review to three questions. The issue posed by the second question, "(d)id the trial court err in not fully complying with the mandate of Rule 723 of the Maryland Rules of Procedure by not properly advising . . . Thompson of his rights and obligations as contained therein?", is dispositive. 1 We find that the trial court committed reversible error in not complying with the mandate of Rule 723. We reverse the judgments and remand the case for a new trial.
Five hearings were held by the Circuit Court for Montgomery County in its attempts to get the case to trial. The docket entries read in relevant part:
1) "2/10/78 Preliminary Inquiry Hearing (Fairbanks, J.).
February 17, 1978. Trial date
set March 22, 1978."
2) "2/17/78 Court (Fairbanks, J.) continues hearing
as to rule 723 to February 24, 1978."
3) "2/24/78 Hearing pursuant to Rule 723 (Fairbanks, J.).
Defendant appeared without attorney.
Court advises defendant that he
will proceed without counsel at
trial, if he has not obtained one;
J.). Defendant failed to appear.
Court orders a Bench Warrant issued
forthwith and issued ....
"4/19/78 Court countermands Bench Warrant
and continues case to April 26, 1978.
Defendant has been advised under
Rule 723 and will go to trial with
or without attorney, per Judge Shure
--no clerk present."
We give the substance of what occurred at the hearings as reflected in the transcripts of the proceedings. The Hearing of 10 February 1978
Assistant State's Attorney Ann S. Harrington was present and J. James McKenna was noted as "Attorney for the Defendant." McKenna, Public Defender, addressed the court:
The court queried Thompson:
MR. McKENNA: He probably is.
THE COURT: but I think you ought to be interviewed, so if you will go with that gentleman we will take care of it as soon as you have been interviewed."
McKenna reported the results of the interview. He told the court, in effect, that Thompson was not sure he wanted to be represented by the Public Defender. "Technically, I suppose, he is eligible though he did post the $750 (for the surety bond) himself though he doesn't seem to have any income." Thompson interposed: He iterated that he wanted to get his own lawyer. The court set trial for 22 March, rejecting suggestions for an earlier trial date in order to give Thompson a fair opportunity to obtain counsel. The court made sure that Thompson understood:
Now, remember, I want either you or your lawyer back here next Friday.
THE DEFENDANT: Yes, sir."
Assistant State's Attorney Stephen J. Savage was present. Thompson told the court that "Mr. Wood" was his lawyer, that Wood was going to represent him and that he had retained Wood "(a) couple of days ago. . . ." Wood was not then present, being before another judge. The court pursued the subject: "Has he agreed to represent you, or do you still have to work out your fee?" Thompson answered: "Yes, sir." The court pressed him: "He hasn't agreed to represent you, has he?" Thompson replied: "He told me he would stand in this morning, you know."
Upon request of the court Thompson found Wood and returned with him. It developed that Wood did not know whether he would represent Thompson. The court observed that there was a March 22nd trial date, and that "you are going to have to fish or cut bait." Wood promised to advise the court if he was not going to enter an appearance.
Assistant State's Attorney Michael Mason and Public Defender McKenna were present. The court informed Thompson that it had received a message that Wood was not representing him, and asked what he was doing about getting a lawyer. Thompson replied: "At the present time I would like the Court to appoint one." The court looked to McKenna, who said:
The judge took the position that if the Public Defender did not think Thompson was eligible to be represented McKenna indicated that several other judges had no hesitation in ordering the Public Defender to afford representation. The judge's reaction was: The court addressed Thompson:
The Assistant State's Attorney attempted to raise a storm signal:
This was the day set for trial. Assistant State's Attorney David C. Driscoll, Jr. represented the State. The clerk declared that "Mr. Adams is entered here for the defendant." In response to an inquiry by the court, Thompson explained that Adams was his court-appointed lawyer in the District Court. The court discovered that Adams' appearance was not entered of record in the circuit court so that an order on his motion to withdraw was unsigned as not needed. Adams had never been in the case on appeal. The court reminded Thompson that it had told him to get a lawyer. Thompson said he remembered. The court asked Thompson if he were going to trial without one. Thompson said: "Yes, sir," and, upon questioning, stated that he wanted a non-jury trial. At this point, the State requested a continuance because a "critical witness" was missing. Trial was set for 19 April. The court turned to Thompson:
The clerk observed that the trial date was 19 April. The court said:
Whereupon, the hearing was concluded.
The case was called for trial before Shure, J. The prosecutor was Assistant State's Attorney Robert L. Dean. Thompson was not present. Dean addressed the court:
"Alfred Thompson appeared before Judge Fairb...
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