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Wallace v. State

Court of Special Appeals of Maryland

June 4, 2018

DAVON WALLACE
v.
STATE OF MARYLAND

          Circuit Court for Prince George's County Case No. CT141549X

          Friedman, Beachley, Moylan, Charles E., Jr. (Senior Judge, Specially Assigned), JJ.

          OPINION

          MOYLAN, J.

         Precisely when (and why) the Sixth Amendment right to counsel attaches to a person is a far more nuanced inquiry than would at first blush appear likely. This appeal presents us with a profusion of such nuances. The appellant, Davon Wallace, was convicted by a jury, presided over by Judge Lawrence V. Hill, Jr., of second-degree depraved heart murder and two related firearm counts. On this appeal, he contends:

1. The lower court erred by denying the motion to suppress an incriminating statement.
2. The lower court erred by ruling that Mr. Wallace had no meritorious reason for discharging counsel.
3. The State failed to present sufficient evidence to sustain the conviction for second degree murder.
4. The lower court erred by allowing the jury to consider the charge of second degree felony murder.
5. The commitment record improperly reflects that Mr. Wallace was convicted of first degree murder, a crime of which Mr. Wallace was acquitted.

The Attachment Of The Sixth Amendment Right To Counsel

         The killing of three-year-old Knijah Bibb, which the appellant does not contest, took place on August 10, 2014. On that day, the appellant immediately arranged for John McKenna, Esq. to represent him as his privately retained defense counsel. Mr. McKenna informed Prince George's County prosecutors that the appellant would turn himself in on August 12, 2014. On that date, however, the appellant failed to appear. A manhunt ensued. The appellant was located in the District of Columbia on September 16, 2014. He was transported to the Metropolitan Police Department and was there interrogated by detectives from Prince George's County. The appellant, on a taped audio/video recording, provided information linking him to the shooting of Knijah Bibb.

         The appellant's first contention is that because that police interview was conducted without the appellant's attorney having been present, it violated his Sixth Amendment right to counsel and should, therefore, have been suppressed. We are going to respond to the contention expressly in the terms in which the appellant has framed it. There is no challenge to the statement based on common law voluntariness. There is no challenge to the statement based on Miranda v. Arizona or on the Fifth Amendment privilege against self-incrimination. There is no challenge pursuant to Maryland constitutional law. This contention is based exclusively on the Sixth Amendment and on nothing else.

         Under those circumstances, it is 'passing strange that nowhere in the appellant's brief are we told that he was indicted by the Grand Jury for Prince George's County on November 18, 2014. That, of course, was the red letter day on which the appellant was graduated from the ranks of the hoi polloi of ordinary personhood and assumed the honorific title of "the accused" for special Sixth Amendment status.[1] An indictment per se, of course, might not have been indispensable for such status. It could, alternatively, have been conferred by the filing of a criminal information by the State's Attorney, but it was not. This Court went to great lengths to explain this Sixth Amendment investiture ceremony in In re Darryl P., 211 Md.App. 112, 176-77, 63 A.3d 1142 (2013):

The initial attachment of the right in this case is uncontroversial. The very wording of the Sixth Amendment, of course, restricts its application to "criminal proceedings." Even with respect to criminal proceedings, moreover, the entire package of Sixth Amendment rights is only available to "the accused." That is in dramatic contrast to the Fifth Amendment, which is broadly available to "persons" generally. What is it then that raises one's status from the hoi polloi of mere "persons" to the special station of being "the accused"? The standard statement for acquisition of "accused" status is United States v. Gouveia, 467 U.S. 180, 187, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984):
[A] person's Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him.
In further explanation of how "adversary judicial proceedings have been initiated, " the Court elaborated that such initiation occurs "by way of formal charge, preliminary hearing, indictment, information, or arraignment." 467 U.S. at 188, 104 S.Ct. 2292. As Moran v. Burbine, 475 U.S. 412, 430, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986), emphatically points out, the fact that one has privately retained a lawyer does not trigger the Sixth Amendment right to counsel. Only the honorific of "accused" can do that.

(Emphasis supplied).

         An Investigative Procedure Versus A Prosecutorial Commitment

         The rite of passage by which the State commits itself to a criminal trial of "the accused, " moreover, is not an investigative step or function but a formal prosecutorial commitment. On August 10, 2014, to be sure, the police filed a Statement of Charges with a District Court Commissioner, charging the appellant with murder and asking for an arrest warrant. The Commissioner signed the Statement of Charges and issued the arrest warrant. That, however, was a preliminary investigative function and not a formal commitment to prosecution. The appellant was not yet in custody and would not be in custody for more than another month. A formal commitment to prosecute can only be made 1) by the Grand Jury, by filing an indictment; 2) by the State's Attorney, by filing a criminal information; or 3) in rarer cases, by the filing of the ultimate pleading, the official document on which a defendant could be tried in a lower court proceeding.

         As the Supreme Court explained in Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), "it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified." See also United States v. Gouveia, 467 U.S. 180, 187, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984). Citing Kirby, the Court of Appeals in State v. Gee, 298 Md. 565, 574, 471 A.2d 712 (1984), spoke to the same effect.

[W]hen the defendant cannot be tried under the warrant-statement of charges he is not held to answer a criminal charge on the basis of that document. Its issuance does not mark the onset of formal prosecutorial proceedings to which the Sixth Amendment guarantee is applicable, nor has the putative defendant thereby become an "accused."

(Emphasis supplied).

         In Webster v. State, 299 Md. 581, 474 A.2d 1305 (1984), the Court of Appeals held that a defendant was not yet an "accused" and, therefore, did not possess a Sixth Amendment right to counsel at a police line-up, notwithstanding the fact that a "Statement of Charges and the arrest warrant were issued prior to the lineup." The Court of Appeals held that neither qualified as a "formal charge."

The Statement of Charges charged Webster with first degree rape. That felony is within the exclusive jurisdiction of the circuit court, and, therefore, the Statement of Charges did not constitute a charging document under which a defendant may be tried.

299 Md. at 611 (emphasis supplied). In the present case, the words of State v. Gee, 298 Md. at 574, are dispositive:

The State has not by the issuance of such a warrant-statement of charges committed itself to prosecute. Before it can proceed the grand jury must indict or the State's Attorney must file an information. Neither is obliged to do so.

(Emphasis supplied).

         The appellant thus did not become an "accused" on August 10, 2014. He did not become an "accused" until he was indicted on November 18, 2014.

         The Distinction Between Being An "Accused" And Being At A "Critical Stage"

         The appellant here is nonetheless obsessed with the issue of whether the police's taking of a statement from him on September 26, 2014, was a "critical stage." It may have been, but that alone, to the appellant's chagrin, would not confer on him a Sixth Amendment right to counsel. In focusing as he does, the appellant is looking only at the second step of a two-step attachment process. He completely ignores the indispensable and antecedent first step. Even an "accused" does not enjoy the cloak of the Sixth Amendment at every stage of his post-indictment life. He must be ensnared in a "critical stage" of the prosecution for his Sixth Amendment right to counsel to click in. Being "accused" is not enough. You must be an "accused" who is also at a "critical stage."

         Conversely, being at a "critical stage" is not enough, unless you also qualify as "the accused." Those who do not yet qualify for Sixth Amendment coverage do not acquire such coverage simply by being at a "critical stage." The Supreme Court created this difference but we explained the difference in Wood v. State, 196 Md.App. 146, 157-58, 7 A.3d 1115 (2010), cert. denied, 418 Md. 192, 13 A.3d 800 (2011):

Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), first held that a suspect placed in a pre-indictment, as opposed to a post-indictment, line-up did not yet enjoy the protection of the Sixth Amendment because such a suspect was not yet an "accused." Being at a critical stage would qualify an "accused" for Sixth Amendment assistance, but if you are not yet "accused" even a critical stage would not help. Whatever little wind still propelled the exclusionary sails after Kirby, it was largely wafted away by the subsequent holding in United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973), that even a post-indictment exhibition of a photograph of a subject, either in a group picture or as part of an array of individual photographs, was, unlike standing the suspect in a live line-up, not a critical stage. Whereas Kirby had diminished the ranks of the "accused, " Ash diminished the incidence of a "critical stage."

(Emphasis supplied). It is a case of 1) eligibility plus 2) need. Neither one alone will suffice.

         A Contractual Right To Counsel Is Not A Constitutional Right to Counsel

         The appellant persists that the police violated his Sixth Amendment right to counsel when they interrogated him on September 26, 2014, without his retained counsel's having been present. The flaw in the appellant's argument is that the police could not have violated his Sixth Amendment right to counsel on September 26, 2014, because the appellant had no Sixth Amendment right to counsel on that date. He would not acquire such a right until seven and one-half weeks later, when he was indicted by the Prince George's County Grand Jury. It was only on November 18, 2014, that formal prosecutorial proceedings were launched against him and that he thereby became an "accused" person. It was only then that he enjoyed a Sixth Amendment right to counsel.

         The appellant seems to harbor an idea that his retention of John McKenna, Esq., on August 10, 2014, endowed him with a Sixth Amendment right. In his brief, he argues:

At the suppression hearing, attorney John McKenna testified that he had agreed, on August 10 or 11, 2014, to represent Mr. Wallace in this case. Mr. McKenna reached out to the prosecutors to arrange for Mr. Wallace to turn himself in on August 12, 2014. Mr. Wallace did not appear. Mr. McKenna testified that he still considered himself Mr. Wallace's attorney when Mr. Wallace was arrested and interrogated in Washington, D.C., about a month later. Detective Deere, who was ...

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