Utt v. State, 57

Citation443 A.2d 582,293 Md. 271
Decision Date05 April 1982
Docket NumberNo. 57,57
PartiesDavid Harold UTT a/k/a Harold David Utt v. STATE of Maryland.
CourtCourt of Appeals of Maryland

George E. Burns, Jr., Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

Ann E. Singleton, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES *, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

SMITH, Judge.

We are here presented with two questions which we shall decide adversely to the petitioner, David Harold Utt. Hence, we shall affirm the judgment of the Court of Special Appeals in Utt v. Warden, Balto. City Jail, 48 Md.App. 486, 427 A.2d 1092 (1981).

The issues before us are (1) whether, as an indigent, Utt was unconstitutionally denied counsel at the Governor's hearing to determine whether a warrant of rendition should be issued, and (2) whether under Maryland Code (1957, 1976 Repl.Vol., 1977 Cum.Supp.) Art. 27A, § 4(b)(4), the Public Defender was obliged to represent him at that hearing. We granted Utt's petition for the writ of certiorari in order that we might decide the important public policy question contained in the first issue. On our own motion we then directed the parties to brief and argue the second issue which had not been presented to the Court of Special Appeals.

It is a fact that Utt requested the Public Defender to provide him with counsel at the Governor's rendition hearing. The Public Defender declined to do so, however, based upon the Attorney General's earlier interpretation of the statute governing the Public Defender.

Utt was sought on theft charges by authorities of the State of Indiana. A hearing on the Indiana Governor's request for the rendition of Utt was held by the Governor of Maryland's representative on January 24, 1980, pursuant to Maryland Code (1957) Art. 41, § 19. 1 The Governor directed that Utt be turned over to Indiana. Utt then petitioned the Baltimore City Court for the writ of habeas corpus in accordance with Code (1957, 1976 Repl.Vol.) Art. 41, § 25. He was represented by the Public Defender at that hearing. The trial judge denied the petition and remanded Utt to the custody of the Warden of the Baltimore City Jail pending extradition. An appeal to the Court of Special Appeals followed.

i Right to counsel at the Governor's rendition hearing

Consistent with the analysis undertaken by each party here and with that previously undertaken by the Court of Special Appeals, the proper focus in the resolution of Utt's contentions is the fundamental issue of what constitutes a "critical stage" in a criminal prosecution. The litigation incident to this determination is voluminous because of the increased emphasis on the accused's constitutional right to counsel. As a general proposition, courts have deemed the assistance of counsel an indispensable and basic right whenever a particular stage or proceeding in the criminal justice process qualifies as "critical."

The right to the assistance of counsel provided by the Sixth and Fourteenth Amendments to the United States Constitution is firmly embedded in the law relative to criminal prosecution and procedure. See Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), and Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). A similar right is set forth in Maryland Declaration of Rights, Art. 21. Although that particular provision appears in our Constitution of 1867, this same type of provision can be found in each of our Constitutions since 1776. Thus, the constitutional right to counsel in Maryland is older than that under the Constitution of the United States.

Equally fundamental is the procedural right to the appointment of an attorney when a defendant is financially unable to retain private counsel. See Thompson v. State, 284 Md. 113, 122-23, 394 A.2d 1190 (1978), and State v. Renshaw, 276 Md. 259, 264-65, 347 A.2d 219 (1975). The underlying policy, in a nutshell, is that "essential fairness is lacking if an accused cannot put his case effectively in court," and that the accused most likely will be unable to present an effective defense without the aid of counsel. Renshaw, 276 Md. at 265, 347 A.2d 219; see Powell v. Alabama, 287 U.S. 45, 66-68, 72, 53 S.Ct. 55, 63, 77 L.Ed. 158 (1932).

Necessarily precedent to the determination of whether the Governor's rendition hearing is a "critical stage," which would require the assistance of counsel, is an examination of the nature of that hearing. Counsel have correctly characterized the hearing as a summary proceeding, one which is informal. See, e.g., Cohen v. Warden, Montgomery Co. Deten. Ctr., Rockville, Md., 252 F.Supp. 666, 671-72 (D.Md.1966); Koprivich v. Warden, 234 Md. 465, 467-69, 200 A.2d 49 (1964); and Willin v. Sheriff, 201 Md. 667, 669, 95 A.2d 87 (1953). The normal rules of evidence applicable to criminal procedure do not apply. United States v. Flood, 374 F.2d 554, 558 (2d Cir. 1967) (citing Johnson v. Warden, 244 Md. 384, 389, 223 A.2d 584 (1966)); Shields v. State, 257 Md. 384, 390, 263 A.2d 565 (1970); and Koprivich, 234 Md. at 468, 200 A.2d 49. The hearing is not designed to test the guilt or innocence of the accused. Solomon v. Warden, 256 Md. 297, 301, 260 A.2d 68 (1969); Johnson, 244 Md. at 389-91, 223 A.2d 584; and State v. Murphy, 202 Md. 650, 651, 655, 96 A.2d 473, cert. denied, 346 U.S. 824, 74 S.Ct. 40, 98 L.Ed. 349 (1953). Also not properly cognizable at an extradition hearing are issues such as motions for suppression, Thomeczek v. Bray, 198 Colo. 341, 343, 600 P.2d 66 (1979); Commonwealth v. Glavin, 354 Mass. 69, 73, 235 N.E.2d 547 (1968), and delay in indictment and extradition as affecting the right to a speedy trial, Shoemaker v. Sheriff, 258 Md. 129, 131-32, 265 A.2d 260 (1970). In fact, although the Governor as a matter of policy normally holds a rendition hearing, there is no constitutional right to a hearing before him. 2 Haynes v. Sheriff of Wash. Co., 253 Md. 278, 280-81, 252 A.2d 807 (1969), and Willin, 201 Md. at 669, 95 A.2d 87 (citing Ex parte Colier, 140 N.J.Eq. 469, 55 A.2d 29 (1947), cert. denied, 333 U.S. 829, 68 S.Ct. 446, 92 L.Ed. 1114 (1948)).

The policy reason for the summary approach to extradition is the favored status of the fugitive's prompt return to the place from whence he came. Flood, 374 F.2d at 556. The Extradition Clause, U.S. Const. art. IV, § 2, cl. 2, was intended to enable each state to bring offenders to trial as swiftly as possible in the state where the alleged offense was committed. Michigan v. Doran, 439 U.S. 282, 287, 99 S.Ct. 530, 534, 58 L.Ed.2d 521 (1978). Since extradition was intended to be a summary and mandatory executive proceeding, the Clause "never contemplated that the asylum state was to conduct the kind of preliminary inquiry traditionally intervening between the initial arrest and trial." 439 U.S. at 288. For general discussion regarding extradition, see Annot., 51 A.L.R. 797, 800-11 (1927).

Powell, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158; Gideon, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), essentially signalled the increasing recognition accorded the assistance of counsel. The importance of counsel has been acknowledged repeatedly. See, e.g., Gideon, 372 U.S. at 344-45, 83 S.Ct. at 796, and Powell, 287 U.S. at 68-69, 53 S.Ct. at 63.

Consistent with this emerging doctrine, the Supreme Court began to structure its examination of right-to-counsel cases according to whether a "critical stage" was involved. Thus, in Hamilton v. Alabama, 368 U.S. 52, 53-54, 82 S.Ct. 157, 158, 7 L.Ed.2d 114 (1961), the Court held that under Alabama law an arraignment was a critical stage in a criminal proceeding. The Alabama code at that time required that if the defense of insanity were not pleaded at arraignment, the opportunity to do so was lost. Counsel was mandated because of the danger that the unwary accused would inadvertently lose strategic defenses. The same reasoning appeared in White v. Maryland, 373 U.S. 59, 60, 83 S.Ct. 1050, 1051, 10 L.Ed.2d 193 (1963), where the Court held a preliminary hearing in Maryland to be a critical stage of the proceedings because the defendant's plea of guilty, which was made at the preliminary hearing when he had no attorney, was introduced into evidence against him at his ultimate trial. Cf. Pointer v. Texas, 380 U.S. 400, 402, 85 S.Ct. 1065, 1067, 13 L.Ed.2d 923 (1965) (Preliminary hearing where accused was not required to enter a plea was not necessarily a critical stage.); Fugate v. Gaffney, 313 F.Supp. 128, 134-35 (D.Neb.1970), aff'd, 453 F.2d 362 (8th Cir. 1971), cert. denied, 409 U.S. 888, 93 S.Ct. 142, 34 L.Ed.2d 145 (1972) (Arraignment was not a critical stage under state law where accused made no incriminating statements and entered a plea of not guilty.); Fabian v. State, 235 Md. 306, 319, 201 A.2d 511, cert. denied, 379 U.S. 869, 85 S.Ct. 135, 13 L.Ed.2d 72 (1964); Lauder v. State, 233 Md. 142, 145, 195 A.2d 610 (1963); and Arrington v. Warden, 232 Md. 672, 674-75, 195 A.2d 38 (1963). These three Maryland decisions distinguished White, finding that the preliminary hearing was not a critical stage under the circumstances of those cases since no adverse admissions or anything of that sort had been involved.

In Anonymous v. Baker, 360 U.S. 287, 79 S.Ct. 1157, 3 L.Ed.2d 1234 (1959), appellants had been found in contempt for refusing to answer pertinent questions put to them as witnesses summoned in a state judicial inquiry into alleged improper practices at the local bar. The sole issue before the Court was

"whether this conviction offended the Due Process Clause of the Fourteenth Amendment to the Federal Constitution by reason of the fact that the justice in charge of the Inquiry had required counsel retained by appellants to remain...

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