# Webster v. State

> Court of Appeals of Maryland · May 25, 1984 · 299 Md. 581

URL: https://www.frixlaw.com/law-library/cases/9754654

## Case

- **Full name:** Bernard WEBSTER v. STATE of Maryland; Victor Salvadore JOHNSON, A/K/A Salvadore Victor Johnson v. STATE of Maryland
- **Court:** Court of Appeals of Maryland
- **Decided:** May 25, 1984
- **Citations:** 299 Md. 581; 474 A.2d 1305; 1984 Md. LEXIS 287
- **Precedential status:** Published
- **Opinion:** Concurrence by Davidson
- **Judges:** Smith, Eldridge, Cole, Davidson, Rodowsky, Couch, Orth
- **Cited by:** 48 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9754654

## How later opinions describe it (automated extraction)

- recognizing right to counsel under state Public Defender Act at pre-indictment lineup and that, when delinquent public defender adversely affects fairness of trial, “it is incumbent upon the judiciary to assure that the defendant is not thereby prejudiced”
- concluding that independent origin test and totality of circum stances test derive from distinct constitutional guarantees, call for different standards and are separate and distinct
- concluding that because the "lineup was not one whit suggestive" reliability was not at issue
- recognizing a right to counsel under the Public Defender Act at lineups conducted before the initiation of adversary proceedings, although the issue was not decided by the lower courts or briefed in the Court of Appeals, without mentioning the fiscal practicability of implemen…
- concluding that independent origin test and totality of circum *177 stances test derive from distinct constitutional guarantees, call for different standards and are separate and distinct

## Opinion text

DAVIDSON, Judge,
dissenting:
With respect to the constitutional right to the assistance of counsel embodied in the Sixth Amendment to the United States Constitution, the majority recognizes the following principles:
1. The constitutional right to the assistance of counsel attaches to a lineup only after indictment. 1
2. Unless the right to counsel is waived, the absence of counsel at a post-indictment lineup renders the lineup illegal.
3. The applicable sanction for such illegality is that evidence of an identification made at a post-indictment lineup is to be excluded per se.
With respect to the statutory right to the assistance of counsel embodied in Maryland Code (1957, 1983 Repl.Vol.), Art. 27A, §§ 1 through 14 (Public Defender Statute), the majority establishes the following principles:
1. The statutory right to the assistance of counsel attaches to a lineup before as well as after indictment.
2. Unless the right to counsel is waived, the absence of counsel at a pre-indictment lineup, as well as a post-indictment lineup, renders the lineup illegal.
3. The applicable sanctions for such illegality are as follows:
a. If the absence of counsel is attributable to law enforcement authorities, evidence of an identification made at a pre-indictment or post-indictment lineup is to be excluded per se.
*625 b. If the absence of counsel is attributable to the public defender, evidence of an identification made at a pre-indictment or post-indictment lineup is admissible if reliable under the totality of circumstances.
I agree with all of the principles enunciated by the majority except that relating to the applicable sanction when the absence of counsel is attributable to the public defender. Under such circumstances, the majority’s application of a sanction other than a per se exclusionary rule when the statutory right to counsel is violated at a post-indictment lineup is inconsistent with the per se exclusionary rule established by the United States Supreme Court for enforcement of the constitutional right to counsel. Equally important, the application of a sanction other than the per se exclusionary rule when the statutory right to counsel is violated at a pre-indictment lineup is inconsistent with the intent of the General Assembly and is antithetical to the purpose of the statutory right to counsel.
The legislative history of the Public Defender Statute, enacted in 1971, illuminates the General Assembly’s intent with respect to an appropriate sanction for a violation of the statutory right to counsel at a pre-indictment lineup. See Scott v. State, 297 Md. 235, 246 , 465 A.2d 1126, 1132 (1983); Department of State Planning v. Mayor of Hagerstown, 288 Md. 9, 14 , 415 A.2d 296, 299 (1980). In 1967, the United States Supreme Court in United States v. Wade, 388 U.S. 218, 236-37 , 87 S.Ct. 1926, 1937 , 18 L.Ed.2d 1149 (1967), held that the constitutional right to counsel attaches to a post-indictment lineup. Moreover, in Gilbert v. California, 388 U.S. 263, 273 , 87 S.Ct. 1951, 1957 , 18 L.Ed.2d 1178 (1967), the Supreme Court held that a per se exclusionary rule was to be applied as a sanction when a post-indictment lineup was illegal because of an absence of counsel.
In 1969, the Court of Special Appeals of Maryland decided Palmer v. State, 5 Md.App. 691 , 249 A.2d 482 (1969). There, Judge Orth, then a member of that Court, initially stated that “the rules of Wade and Gilbert apply also to a lineup conducted before indictment____” The Court of Spe *626 cial Appeals determined that the constitutional right to counsel attaches to a pre-indictment lineup. Significantly, that Court held that a per se exclusionary rule was to be applied as a sanction when a pre-indictment lineup was illegal because of an absence of counsel. Palmer, 5 Md. App. at 698-99 , 249 A.2d at 488 . Thereafter, the Court of Special Appeals consistently enunciated the same principles, including the principle that a per se exclusionary rule was the appropriate sanction to be applied whenever evidence was obtained at a pre-indictment lineup conducted in the absence of counsel. E.g., Billinger v. State, 9 Md.App. 628, 630 , 267 A.2d 275, 276 (1970); McChan v. State, 9 Md.App. 317, 319 , 264 A.2d 133, 135 (1970); Cook v. State, 8 Md.App. 243, 246-47 , 259 A.2d 326, 329 (1969); Joyner v. State, 7 Md.App. 692, 698-99 , 257 A.2d 444, 449 (1969); Watson v. State, 7 Md.App. 225, 234-35 , 255 A.2d 103, 108 (1969); Smith v. State, 6 Md.App. 59, 64-65 , 250 A.2d 285, 289 , cert. denied, 254 Md. 720 (1969), cert. denied, 397 U.S. 1057 , 90 S.Ct. 1402 , 25 L.Ed.2d 674 (1970).
Assumably, the General Assembly was aware of and acted in accordance with these decisions. Turner v. State, 299 Md. 565, 578 , 474 A.2d 1297, 1304 (1984); Supervisor of Assessments of Anne Arundel County v. Southgate Harbor, 279 Md. 586, 591-92 , 369 A.2d 1053, 1056 (1977); Herbert v. Gray, 38 Md. 529, 532 (1873). In my view, there can be no question that in 1971, when the General Assembly enacted the Public Defender Statute that established the statutory right to counsel at a pre-indictment lineup, it was fully cognizant that the per se exclusionary rule would be the sanction applied when evidence was obtained at a preindictment lineup conducted in the absence of counsel.
In 1972, the Supreme Court decided Kirby v. Illinois, 406 U.S. 682 , 92 S.Ct. 1877 , 32 L.Ed.2d 411 (1972). There, in a plurality opinion, that Court determined that the constitutional right to counsel attaches only after indictment and that consequently a per se exclusionary rule was not applicable to evidence obtained at pre-indictment lineups. There *627 after, the Court of Special Appeals in Jackson v. State, 17 Md.App. 167, 171-72 , 300 A.2d 430, 434 , cert. denied, 268 Md. 749 (1973), and this Court in Foster v. State, 272 Md. 273, 286 , 323 A.2d 419, 425 (1973), cert. denied, 419 U.S. 1036 , 95 S.Ct. 520 , 42 L.Ed.2d 311 (1974), reached the same conclusion. Assumably, the General Assembly was aware of these decisions. Nevertheless, it did not eliminate the preexisting statutory right to counsel or alter the preexisting sanction of the per se exclusionary rule.
The legislative history of the Public Defender Statute establishes that the General Assembly intended that a per se exclusionary rule be applied whenever a pre-indictment lineup was illegal because of an absence of counsel. Under these circumstances, the majority’s formulation of a sanction based upon fault when a pre-indictment lineup is illegal because of an absence of counsel is contrary to legislative intent and is therefore unjustified.
Moreover, the majority’s utilization of a due process totality of circumstances analysis, when a pre-indictment lineup is illegal because of an absence of counsel that is attributable to the public defender, is, in my view, antithetical to the purpose of the statutory right to counsel and is therefore unjustified. In Wade , the Supreme Court, in determining that an accused had a constitutional right to counsel at a post-indictment lineup, said at 388 U.S. 228 , 87 S.Ct. 1933 :
“[T]he confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial.”
The Supreme Court recognized the inherently untrustworthy characteristics of identification evidence resulting from “the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification.” The Supreme Court further recognized that “[suggestion can be created intentionally or unintentionally in many subtle ways.” 388 U.S. 228 -29, 87 *628 S.Ct. 1933 . Indeed, the Supreme Court, at 388 U.S. 235 , 87 S.Ct. 1936 , said:
“We do not assume that these risks are the result of police procedures intentionally designed to prejudice an accused. Rather we assume they derive from the dangers inherent in eyewitness identification and the suggestibility inherent in the context of the pretrial identification.”
The Supreme Court then noted that a post-indictment lineup involves “a process attended with hazards of serious unfairness to the criminal accused” who is generally unable “to ferret out suggestive influences____” 388 U.S. 234 , 87 S.Ct. 1936 . In conclusion, the Supreme Court, at 388 U.S. 235 -37, 87 S.Ct. 1937 , said:
“[I]n the present context, where so many variables and pitfalls exist, the first line of defense must be the prevention of unfairness and the lessening of the hazards of eyewitness identification at the lineup itself. The trial which might determine the accused’s fate may well not be that in the courtroom but that at the pretrial confrontation, with the State aligned against the accused, the witness the sole jury, and the accused unprotected against the overreaching, intentional or unintentional, and with little or no effective appeal from the judgment there rendered by the witness — ‘that’s the man.’
“Since it appears that there is grave potential for prejudice, intentional or not, in the pretrial lineup, which may not be capable of reconstruction at trial, and since presence of counsel itself can often avert prejudice and assure a meaningful confrontátion at trial, there can be little doubt that for Wade the post-indictment lineup was a critical stage of the prosecution at which he was ‘as much entitled to such aid [of counsel] * * * as at the trial itself.’ Thus both Wade and his counsel should have been notified of the impending lineup, and counsel’s presence should have been a requisite to conduct of the lineup, absent an ‘intelligent waiver. ’ ” (Footnote omitted) (citations omitted) (emphasis added).
*629 Thus, the Supreme Court established that an accused cannot be protected from the potentially prejudicial impact of a pretrial confrontation unless counsel is present to avert prejudice and insure a meaningful confrontation at trial. The Supreme Court did not suggest that these functions could be performed adequately by a person other than a lawyer. Nor did it suggest that an accused’s rights could be protected adequately by the presence of a person other than a lawyer.
In Gilbert , the Supreme Court considered the appropriate sanction to be applied when a lineup was conducted in the absence of counsel. There, the Supreme Court, at 388 U.S. 273 -74, 87 S.Ct. 1957 , said:
“Only a per se exclusionary rule as to such testimony can be an effective sanction to assure that law enforcement authorities will respect the accused’s constitutional right to the presence of his counsel at the critical lineup. In the absence of legislative regulations adequate to avoid the hazards to a fair trial which inhere in lineups as presently conducted, the desirability of deterring the constitutionally objectionable practice must prevail over the undesirability of excluding relevant evidence. That conclusion is buttressed by the consideration that the witness’ testimony of his lineup identification will enhance the impact of his in-court identification on the jury and seriously aggravate whatever derogation exists of the accused’s right to a fair trial.” (Citations omitted).
In Gilbert , the Supreme Court again recognized the potential prejudice inherent in lineups conducted in the absence of counsel. It acknowledged that the accused’s right to a fair trial was further aggravated by such lineups because the impact of an incourt identification is enhanced by a lineup identification. It attempted to assure that law enforcement authorities would respect the right to counsel at a lineup and to deter the conduct of lineups in the absence of counsel. All of these considerations support the conclusion that in Gilbert the Supreme Court determined *630 that the potential prejudice of lineups conducted in the absence of counsel was so great that evidence obtained at such lineups was inherently unreliable and should not, under any circumstances, be admitted into evidence for consideration by the trier of fact. This goal was to be achieved by the application of a per se exclusionary rule.
Thus, the purpose of the per se exclusionary rule applied by the Supreme Court in Gilbert was not merely to provide a sanction that would deter law enforcement authorities from improper procedures that impinged upon an accused’s constitutional rights. Rather, and more fundamentally, it was to protect the integrity of the fact-finding process itself. In short, the Supreme Court’s purpose in applying a per se exclusionary rule was to assure an accused a fair trial by requiring that evidence obtained at a lineup conducted in the absence of counsel should not, under any circumstances, be admitted into evidence because it was too inherently unreliable to be considered by the trier of fact.
In my view, the purpose of the statutory right to counsel at a pre-indictment hearing is analogous to the purpose of the constitutional right to counsel at a post-indictment hearing, as explicated by the Supreme Court in Wade and Gilbert . The Public Defender Statute requires the presence of counsel at a pre-indictment lineup. The purpose of that requirement is to assure an accused a fair trial by requiring that evidence that is inherently unreliable because it is obtained at a lineup conducted in the absence of counsel should not under any circumstances be admitted into evidence to be considered by the trier of fact. Manifestly, that purpose cannot be achieved when the admissibility of evidence obtained at a lineup conducted in the absence of counsel is made dependent upon whether the absence of counsel is attributable to law enforcement authorities or the public defender. Because the potential prejudice inherent in lineups conducted in the absence of counsel is equally great whether that absence is attributable to law enforcement authorities or the public defender, a per se exclusionary rule should be employed even when the absence of *631 counsel is attributable to the public defender. 2 In sum, the majority’s utilization of a due process totality of the circumstances analysis transforms otherwise inadmissible evidence into admissible evidence when an absence of counsel is attributable to the public defender. Such a result is antithetical to the purpose of the statutory requirement that counsel be present at a pre-indictment lineup.
Here the record shows that the defendants were identified at pre-indictment lineups. Under the Public Defender Statute, the defendants had a right to counsel. The record shows that the defendants did not waive that right. Nevertheless, counsel was not present at either of the pre-indictment lineups. A person other than a lawyer was present. Manifestly, a person other than a lawyer is not a lawyer. 3 Because a lawyer was not present, the defendants’ rights *632 were not protected adequately against the potentially prejudicial impact of a pretrial confrontation. That the absence of counsel was attributable to the public defender is immaterial. A per se exclusionary rule should have been applied.
*633 The evidence obtained at the pre-indictment lineups was inadmissible and should have been excluded. I would therefore reverse the judgments of the trial courts and would remand the cases for new trials. Accordingly, I respectfully dissent.
. Throughout this dissenting opinion, the word "indictment" means indictment, information, other formal charges, arraignment or preliminary hearing.
. In my view, the Code of Professional Responsibility constitutes the appropriate sanction or deterrent to prevent an absence of counsel "attributable to the public defender.” See, e.g., DR 3-101(A) and DR 6-101(A)(3).
DR 3-101(A) provides:
"A lawyer shall not aid a non-lawyer in the unauthorized practice of law.”
DR 6-101(A)(3) provides:
“(A) A lawyer shall not:
“(3) Neglect a legal matter entrusted to him.”
. The differences between a lawyer and a non-lawyer who undertakes to handle matters requiring professional legal judgment is cogently described in the Code of Professional Responsibility — Ethical Considerations.
EC 3-1 provides:
“The prohibition against the practice of law by a layman is grounded in the need of the public for integrity and competence of those who undertake to render legal services. Because of the fiduciary and personal character of the lawyer-client relationship and the inherently complex nature of our legal system, the public can better be assured of the requisite responsibility and competence if the practice of law is confined to those who are subject to the requirements and regulations imposed upon members of the legal profession.”
EC 3-2 provides:
“The sensitive variations in the considerations that bear on legal determinations often make it difficult even for a lawyer to exercise *632 appropriate professional judgment, and it is therefore essential that the personal nature of the relationship of client and lawyer be preserved. Competent professional judgment is the product of a trained familiarity with law and legal processes, a disciplined, analytical approach to legal problems, and a firm ethical commitment."
EC 3-3 provides:
“A non-lawyer who undertakes to handle legal matters is not governed as to integrity or legal competence by the same rules that govern the conduct of a lawyer. A lawyer is not only subject to that regulation but also is committed to high standards of ethical conduct. The public interest is best served in legal matters by a regulated profession committed to such standards. The Disciplinary Rules protect the public in that they prohibit a lawyer from seeking employment by improper overtures, from acting in cases of divided loyalties, and from submitting to the control of others in the exercise of his judgment. Moreover, a person who entrusts legal matters to a lawyer is protected by the attorney-client privilege and by the duty of the lawyer to hold inviolate the confidences and secrets of his client.”
EC 3-4 provides:
"A layman who seeks legal services often is not in a position to judge whether he will receive proper professional attention. The entrustment of a legal matter may well involve the confidences, the reputation, the property, the freedom, or even the life of the client. Proper protection of members of the public demands that no person be permitted to act in the confidential and demanding capacity of a lawyer unless he is subject to the regulations of the legal profession."
EC 3-5 provides:
“It is neither necessary nor desirable to attempt the formulation of a single, specific definition of what constitutes the practice of law. Functionally, the practice of law relates to the rendition of services for others that call for the professional judgment of a lawyer. The essence of the professional judgment of the lawyer is his educated ability to relate the general body and philosophy of law to a specific legal problem of a client; and thus, the public interest will be better served if only lawyers are permitted to act in matters involving professional judgment. Where this professional judgment is not involved, non-lawyers, such as court clerks, police officers, abstracters, and many governmental employees, may engage in occupations that require a special knowledge of law in certain areas. But the services of a lawyer are essential in the public interest whenever the exercise of professional legal judgment is required.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9754654. Public record. Not legal advice.