Tyler v. State, 381-A

• Decision Date: 09 October 1968
• Docket Number: No. 381-A,381-A
• Citation: 5 Md.App. 265,246 A.2d 634
• Parties: James LeRoy TYLER v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 265

5 Md.App. 265

246 A.2d 634

James LeRoy TYLER v. STATE of Maryland.

No. 381-A.

Court of Special Appeals of Maryland.

Oct. 9, 1968.

Leonard R. Goldstein, College Park, for appellant.

Thomas N. Biddison, Jr., Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Arthur A. Marshall, Jr. and Vincent J. Femia, State's Atty. and Asst. State's Atty. for Prince George's County, on the brief, for appellee.

Before MURPHY, C. J., and MORTON, ORTH and THOMPSON, JJ.

MURPHY, Chief Judge.

On the night of June 27, 1967, Meade's Liquor Store in Prince George's County was held up by two men, one of whom held a gun on Francis Krahling, the store manager, directed him to open the cash register and then shot him in the foot. Krahling described the man who shot him to the police shortly after the robbery as being a light complected Negro male, approximately 5 7 and between twenty-five and twenty-seven years of age. Krahling was unable to give police any description of the second robber.

The day following the robbery, Krahling was shown eight to ten photographs of Negro males from which he picked out the appellant as the man who held the gun on him during the robbery. Appellant was arrested on June 30, 1967 in the District of Columbia and after his request for counsel was denied by that jurisdiction, he was promptly transported to Prince George's County where he made two more requests for immediate appointment of counsel, both of which were also denied. On July 3, 1967, a preliminary hearing was held in the People's Court for Prince George's County at which appellant was not represented by counsel. Francis Krahling attended the preliminary hearing and identified appellant as one of the men who had robbed him. Appellant was subsequently indicted on August 7, 1967 and charged with robbery with a deadly weapon and related offenses, all in connection with the liquor store robbery on June 27. Counsel on behalf of appellant thereafter entered his appearance and the case came on for trial on September 14, 1967 before a jury in the Circuit Court for Prince George's County.

At the trial, the State on direct examination established the corpus delicti through the testimony of Francis Krahling, who also made an in-court identification of the appellant as the person who had robbed him. No objection was interposed at that time by the appellant to the in-court identification. On cross-examination, however, it was brought out that Krahling had made an extrajudicial identification of appellant by photograph and had also identified him at the preliminary hearing. It was Krahling's testimony that he was in the court room for the preliminary hearing when the appellant, dressed in blue denim, was brought through a side door with another man, after which he stood with other men whom he believed to be 'officers of the court.' Krahling testified that he knew at that time that he was to be a witness in a case involving James Tyler (the appellant) that he heard appellant's name called out in court, heard the reading of the charge against appellant by the Clerk to the effect that appellant had robbed Krahling; and that he observed appellant sitting at the table alone near the witness stand. Krahling further testified that he was asked at the preliminary hearing whether he had seen appellant before, to which he responded that he was the man who had robbed him on June 27; that he had observed appellant's face at the preliminary hearing and did not 'positively identify him until I got around and looked right at his face.' Testifying on his photographic identification of appellant, Krahling stated that he had picked him from eight to ten photographs of Negro males and that there was 'no question' in his mind that the photograph he selected was of the man who robbed him.

Appellant moved to strike the identification evidence resulting from the confrontation at the preliminary hearing on the ground (a) that his right to counsel at the preliminary hearing was denied in violation of the sixth amendment to the constitution, and (b) that the in-court identification was inadmissible as it was tainted by the illegal extrajudicial identification made at the preliminary hearing. The motion was denied and appellant was subsequently convicted by the jury of robbery with a deadly weapon and sentenced by the court to ten years imprisonment.

Appellant contends on this appeal, as he did in substance below, that the State's failure to provide counsel for him as an indigent accused at the preliminary hearing was a denial of his constitutional right to counsel in that he was denied the right to adequately cross-examine the State's witness and consequently was denied the right to discovery of the State's case. More specifically, he maintains that where an accused has counsel to represent him at the preliminary hearing, he is thereby afforded an opportunity, through cross-examination of the State's witnesses, to learn more of the State's case and is thus better enabled to prepare a more intelligent defense-one which includes the opportunity to use testimony of the State's witnesses at the preliminary hearing for impeachment purposes at the trial. Appellant urges that as these rights and advantages accrue to the accused who is financially able to employ counsel to represent him at the preliminary hearing, it is a denial of the equal protection clause of the fourteenth amendment not to afford indigent accused persons with counsel at the preliminary hearing, viz., that the classification thus drawn constitutes an invidious discrimination based solely on the ability to pay.

That an indigent accused in a serious State criminal prosecution has an absolute constitutional right to have counsel appointed for his defense at his trial is settled beyond question. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Manning v. State, 237 Md. 349, 206 A.2d 563; Wayne v. State, 4 Md.App. 424, 243 A.2d 19. The right is one which extends only to 'critical' stages of the proceedings against the accused. McClelland v. State, 4 Md.App. 18, 240 A.2d 769; Blake v. State, 2 Md.App. 492, 235 A.2d 569. It has been repeatedly held that the preliminary hearing under Maryland law is not of itself such a critical stage in the judicial process. DeToro v. Pepersack, 4 Cir., 332 F.2d 341, cert. den. 379 U.S. 909, 85 S.Ct. 198, 13 L.Ed.2d 181; Pressley v. Warden, 242 Md. 405, 219 A.2d 25; Hannah v. State, 3 Md.App. 325, 239 A.2d 124; State v. Hardy, 2 Md.App. 150, 233 A.2d 365; Crumb v. State, 1 Md.App. 98, 227 A.2d 369. In Timbers v. State, 2 Md.App. 672, 236 A.2d 756, we specifically held that the preliminary hearing was not a critical stage in the proceeding merely because, in the absence of counsel, the accused's ability to discover the State's case and to cross-examine the State's witnesses would be more limited than if he had counsel representing him at the hearing. We pointed out in Timbers that it is not the purpose of the preliminary hearing to provide a forum for discovery and that while it does afford, as an incidental by-product, some opportunity for discovery, the Constitution does not require, for that reason, that counsel be appointed at such a non-critical stage of the proceeding. See also Mason v. State, 2 Md.App. 768, 238 A.2d 138. Adhering to these views, we conclude that appellant was not for the reasons asserted by him denied his constitutional right to counsel at a critical stage of the proceedings against him.

Appellant next contends that even though the preliminary hearing may not always constitute a critical stage of the proceedings, when events transpire there that are likely to prejudice the ensuing trial, then the preliminary hearing does become 'critical' and the accused who is subjected to such a proceeding in the absence of counsel is denied his constitutional right to counsel under the sixth amendment. For this proposition appellant relies upon United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178. He urges that where one of the purposes of the preliminary hearing is to have the victim or other witnesses identify the accused as the criminal agent, this is an event likely to prejudice the ensuing trial since once such an identification has been made, the witness will not ordinarily change his mind so that, for all practical purposes, the matter of identification has been established before trial. Under these circumstances, appellant contends that the presence of counsel at the preliminary hearing is necessary to guard against the possibility of suggestive, unfair and prejudicial identification procedures derogating from the accused's basic right to a fair trial free of improper influences. For these reasons, appellant asserts under Wade and Gilbert that the preliminary hearing, where an identification is made, is a critical stage of the criminal prosecution requiring the appointment of counsel for an indigent accused, and that where the State so fails to afford counsel the subsequent conviction of the accused is void.

We hold that nothing in Wade or Gilbert guarantees the right to counsel at a preliminary hearing whether or not an identification of the accused is made. In Tender v. State, 2 Md.App. 692, 237 A.2d 65, we said that the precise holdings in Wade and Gilbert were that a post indictment lineup held after June 12, 1967, at which the accused was exhibited to identifying witnesses, was a critical stage of the criminal prosecution; that police conduct of such a lineup without notice to and in the absence of counsel denied the accused his sixth amendment right to counsel and called in question the admissibility at trial of the in-court identification of the accused by witnesses who attended the illegal lineup; and that for such testimony to be admissible, it must be established by clear and...