Woodell v. State, 227

• Decision Date: 01 July 1960
• Docket Number: No. 227,227
• Citation: 223 Md. 89,162 A.2d 468
• Parties: James C. WOODELL v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 89

223 Md. 89

162 A.2d 468

James C. WOODELL v. STATE of Maryland.

No. 227.

Court of Appeals of Maryland.

July 1, 1960.

John F. McAuliffe, Rockville, for appellant.

James H. Norris, Jr., Sp. Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., and Leonard T. Kardy, State's Atty. for Montgomery County and Stuart Sweeney, Asst. State's Atty. for Montgomery County, Rockville, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

BRUNE, Chief Judge.

James C. Woodell, the appellant, was found guilty by a jury in the Circuit Court for Montgomery County on a charge of larceny of certain surveying instruments and was sentenced to two years' imprisonment. He appeals and contends that the evidence was insufficient to support the conviction, that the trial erred in questioning the appellant and that the court's instructions to the jury were erroneous in two respects. The State contends that because no appropriate motions or objections were made in the trial court with regard to any of these matters, none of the appellant's contentions is properly before this Court. The appellant concedes that there are a number of decisions of this Court holding that in the absence of a motion for a directed verdict made below and not withdrawn, this Court may not review the sufficiency of the evidence under Maryland Rules, rule 738, and Article XV, Sec. 5 of the Constitution of Maryland. He omits reference to Code (1957), art. 27, § 593, which is also here pertinent. See Auchincloss v. State, 200 Md. 310, 89 A.2d 605; Leet v. State, 203 Md. 285, 100 A.2d 789; Strine v. State, 204 Md. 339, 104 A.2d 601; Bowen v. State, 206 Md. 368, 111 A.2d 844; Briley v. State, 212 Md. 445, 129 A.2d 689; Braxton v. State, 214 Md. 370, 135 A.2d 307; Jackson v. State, 214 Md. 454, 135 A.2d 638; Reddick v. State, 219 Md. 95, 148 A.2d 384; Bulluck v. State, 219 Md. 67, 148 A.2d 433; Reynolds v. State, 219 Md. 319, 149 A.2d 774; Martel v. State, 221 Md. 294, 157 A.2d 437. The appellant seeks to avoid the application of the rule requiring a motion for a directed verdict to be made or renewed on the ground that his trial counsel was appointed by the court and was not employed by him. From this fact he argues that such an attorney acts primarily as an officer of the court and that no true agency relationship was created between attorney and client, and hence that any omission of his court appointed counsel should not be charged against him. He also urges that failure of his trial counsel to renew his motion for a directed verdict at the conclusion of all the evidence (such a motion having been made and denied at the conclusion of the State's case) 'is indicative of a failure to provide the defendant with competent representation by counsel, and consequently a deprivation' of his right to counsel under Article 21 of the Declaration of Rights and under Maryland Rules, Rule 723 b. ¹ (He makes no mention of art. 23 or of the Fourteenth Amendment). This line of argument is directed to the question of the sufficiency of the evidence, but would also seem relevant as to the other questions which the appellant seeks to raise, notwithstanding the absence of appropriate objection. As to the other points the appellant claims that the alleged deficiencies in the instructions can be reviewed under the clause of Rule 739 g, authorizing this Court 'of its own motion' to 'take cognizance of and correct any plain error material to the rights of the accused even though not included in the assignment of errors.' The precise basis upon which he asserts a right to a review of the court's questioning of the defendant is not clear.

Before going into what we take to be the appellant's major contentions, we shall take note of one contention which he seems to concede was rejected by Bowen v. State, supra. This contention (which, so the appellant states, was raised by the appellant's brief in Bowen) is that Rule 738 a, which, he says, 'has the effect of denying an accused appellate review of the sufficiency of the evidence when a motion for a directed verdict is not made or renewed, is unconstitutional as being in derogation of Article XV, Section 5 of the Maryland Constitution, as amended in 1950, in that the rule attempts to restrict a comprehensive constitutional right.' The opinion in the Bowen case is adverse to the validity of such a contention, but does not specifically discuss it. We find no merit in this contention. The 1950 amendment, which empowered the trial court to direct (not merely to advise) a verdict for the defendant because of the legal insufficiency of the evidence, does not in terms confer a right of appeal. That right is conferred by what is now § 593 of Article 27 of the Code (1957), and that section predicates the right of appeal upon a motion for a directed verdict having been made at the end of the State's case, or, if then overruled and waived by the defendant's offering evidence, upon its having been renewed at the close of all the evidence. See Auchincloss v. State, supra, 200 Md. at page 315, 89 A.2d at page 607. Rule 738 a provides for the making of the above motions (substantially in the words of the statute), but it neither grants nor attempts to limit the right of appeal conferred by the statute. That would seem to dispose of this contention. We may add that the right of appeal is a creature of the statute, and not of the constitutional amendment. It was actually the statute, much more than the rule, which the appellant attacked in Bowen, though the appellant's brief in the instant case does not so indicate, nor does his brief, in terms, purport to attack the validity of the conditions which the statute has attached to the exercise of the right of appeal which it creates. The attack made in Bowen was not successful.

We now turn back to the appellant's contention that his objection to the sufficiency of the evidence should be considered by this Court, notwithstanding the fact that his motion for a directed verdict was not renewed at the close of all the evidence, because his trial counsel was court appointed. The statute itself suggests no exception where the attorney who omits to make the motion happens to be court appointed; and we see no basis upon which such an exception could be read into it.

The appellant relies strongly upon the case of State v Williams, 1890, 9 Houst., Del., 508, 18 A. 949, in the Court of Oyer and Terminer of Delaware. There, in passing upon a motion for a new trial, the court said (18 A. at page 951): 'Here the courts have power to assign counsel to perform the service they would otherwise feel bound to take upon themselves. He is thus a sort of a substitute for themselves, and his omissions should be viewed by the court, in the exercise of its discretion in granting or refusing new trials, more favorably than if he had been employed by the prisoner himself for his defense.' How far such an approach may be applicable where, as in the instant case, we are confronted with a statute which does not purport to confer any discretion, is at best very doubtful. The broader scope of review in this State on a motion for a new trial than on appeal, particularly as to matters resting upon the sufficiency of the evidence, has recently been commented upon by this Court in Johnson v. State, 219 Md. 481, 483, 150 A.2d 446.

Cases outside of this State which have dealt with this matter of greater leniency with regard to errors or omissions of court appointed counsel appear to have generally involved the granting of new trials. See annotations in 24 A.L.R. 1036 and 64 A.L.R. 436, and see also Appellate Review in a Criminal Case of Errors Made Below Not Properly Raised and Reserved, 23 Miss. L.J. 42, 56; Comment, Quality of Counsel in Criminal Cases, 8 Ark.L.Rev. & Bar Asso.J. 484, where a number of cases are collected, though there do not appear to be a great many cases bearing directly on this subject. There are a great number of habeas corpus or Post Conviction Procedure Act cases in this State alone where incompetence of counsel is alleged (often we may interpolate, with no apparent regard for facts), and in many such cases this Court, in denying relief, has commented on the fact that counsel under attack was of the defendant's own selection. Generally speaking, such cases are due process cases, which present a different problem that will be referred to later.

We see no sound reason for drawing a distinction between the effect of errors or omissions of court appointed counsel and those of counsel employed by the defendant. The argument advanced by the appellant here that there is no true agency as between the client and his attorney where the attorney is appointed by the court and is not selected and employed directly by the client, is not convincing to us. The relationship of attorney and client can be and, we think, is as effectively established where counsel for an indigent defendant is appointed by the court as where he is employed by a solvent defendant at his own expense. If this were not so, the appointment of counsel for indigent defendants would be largely a solemn farce. We believe that modern requirements for the appointment of counsel for indigent defendants and provisions for their payment at public expense, such as we have in this State, contemplate full representation and do not contemplate that the trial court shall act as a kind of associate trial counsel for a...