circumstances surrounding repeated calls to public official were sufficient for jury to conclude that calls were made with intent to harass
How later courts described this case
- circumstances surrounding repeated calls to public official were sufficient for jury to conclude that calls were made with intent to harass
Written by the judges who cited it.
The opinion
Lowe, J.,
dissenting:
In Burgett v. Texas, 389 U. S. 109 , the Supreme Court held that prior convictions obtained when a defendant was not represented by counsel could not be used “to support guilt or enhance punishment,” premised upon the theory that to do so was an erosion of the right to counsel expressed by Gideon v. Wainwright, 372 U. S. 335 . Emphasizing the importance it placed upon this principle, the Supreme Court followed Burgett with United States v. Tucker, 404 U. S. 443 , holding that convictions obtained in violation of the fundamental right to counsel may not be considered even in the sentencing procedure.
Recognizing the importance placed upon this principle by the Supreme Court, we have held that the burden is on the State to establish by “clear and convincing evidence that the defendant’s constitutional right to counsel was not infringed at the prior proceeding.” Moore v. State, 17 Md. App. 237, 242-243 ; Johnson v. State, 9 Md. App. 166 .
“The procedure that we spelled out in Johnson, *291 supra, and reiterated in Moore, supra, was not intended to be a guide, that may or may not be used, but was enunciated and promulgated for the Bench and Bar to follow.” Carroll v. State, 19 Md. App. 179, 185 .
The majority here points out the inarticulate but strenuous attempts both by counsel and the accused to preserve his right not to be prejudiced by an outrageous attempt to interject into the case unrelated, ancient and possible unconstitutional convictions from appellant’s childhood.
“When appellant’s counsel objected to the question, ‘On April 25, 1931, were you convicted of larceny of an auto?’, he was not asked by the trial judge to state his reasons for the objection. Counsel, nevertheless, did give his reasons. The reasons given were ‘there was no direct examination on that subject whatsoever’ and ‘It is prejudicial’. The appellant himself volunteered two other reasons for the objection, i.e., the inadmissibility of a juvenile record as a matter of law, and the relevancy of a record ‘back when I was . . . seventeen (17) years old’.” at p. 285.
It is inconceivable to me that the majority can consider these efforts as a waiver of so fundamental a right as right to counsel, then six pages later pontifically quote from Johnson v. Zerbst, 304 U. S. 458 that courts must:
“ ‘ indulge every reasonable presumption against waiver of fundamental rights . . . [and] not presume acquiescence in the loss of fundamental rights’.”,
when compelling a resentencing, precisely because counsel was not present at its imposition.
The suddenness and surprise with which issues of this nature arise at trial does not always lend itself to an easy ability to single out a case or precise rubrics as in the subtle manner required by the majority in order to preserve the *292 issue on appeal. The preservation of rights should not depend upon a fortunate choice of words. Nor should we discourage counsel from attempting to ignite a necessary spark of recognition in the court by volunteering reasons for an objection, for fear of overlooking the key reason.
Here, in any case, counsel’s stated reasons for his objection, prejudice and questioning beyond the scope of direct examination, were both certainly not completely groundless and broad enough not to be considered a waiver. On the other hand, the accused’s reference to the “inadmissibility of a juvenile record as a matter of law” practically described our recent holding in Carroll, supra. Cf. Bailey v. State, 263 Md. 424, 427 . It would appear that, to the majority, the first was too broad and the second too narrow.
However viewed, the objections here are as those described in Bailey, 263 Md. at 427 :
“We find it impossible from the record to tell what the basis of the objection was.”
The objections clearly placed the burden upon the State to establish “by clear and convincing evidence” before they could be used to attack his character, that these 38 year old convictions were not obtained by an infringement upon appellant’s constitutional right to counsel. Johnson and Moore , both supra. To hold otherwise would make the assertion of a constitutionally founded right a guessing game played during the heat of trial, with the defendant’s right to appeal the stakes. That is completely contrary to the message of Bailey, supra.
I respectfully dissent.