Circuit Court for Prince George's County Case No.
Friedman, Beachley, Moylan, Charles E., Jr. (Senior Judge,
Specially Assigned), JJ.
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
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
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.
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.
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. 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.
Investigative Procedure Versus A Prosecutorial
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
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
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
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
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
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.
Distinction Between Being An "Accused" And Being At
A "Critical Stage"
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
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
(Emphasis supplied). It is a case of 1) eligibility plus 2)
need. Neither one alone will suffice.
Contractual Right To Counsel Is Not A Constitutional Right to
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.
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 ...