Powell v. Maryland10/30/1991
This case presents two questions for our resolution, namely, whether the failure to hold, or waive, a preliminary hearing is jurisdictional and whether, under the facts sub judice, hearsay evidence should have been admitted. When it addressed these issues, the Court of Special Appeals answered both questions in the negative. Powell v. State, 85 Md. App. 330, 583 A.2d 1114 (1991). We will do likewise.
1
Wilbert Powell, Jr., petitioner, was arrested and charged, by way of Statement of Charges, filed in the District Court of Maryland, sitting in Anne Arundel County, see Maryland Rule 4-211, with having "feloniously, willfully[,] deliberately[,] and maliciously" murdered Donald Jackson, the victim. At the petitioner's request, a preliminary hearing was held, at which probable cause to believe petitioner committed the offense was found. Thereafter, a criminal information was
filed in the Circuit Court for Anne Arundel County. In addition to murder the information charged armed robbery, attempted armed robbery, robbery, assault with intent to rob, theft, attempted theft, assault and battery, and assault. Notwithstanding that three of these charges were felonies not within the jurisdiction of the District Court, no other preliminary hearing was held and, insofar as the record reflects, none was requested. Explaining the latter, petitioner asserts that he was never advised that he had a right to a preliminary hearing in regard to the three subsequently charged felonies.
Petitioner was tried by jury. At the conclusion of trial, he was convicted of all the charges except murder. The court sentenced him to 15 years imprisonment for the armed robbery conviction and merged the others into it. Petitioner appealed to the Court of Special Appeals, which, as we have seen, affirmed. We issued the writ of certiorari to consider the important issues raised by petitioner. 322 Md. 644, 589 A.2d 73.
2
Relying on Maryland Rule 4-201(c) and Maryland Rule 4-213(a)(4), petitioner argues that the circuit court
lacked jurisdiction to try him for armed robbery, robbery or assault with intent to rob. He asserts that which is necessarily conceded, namely that no preliminary hearing was separately held for those charges and, further, that, never having been advised of the right to it, he never expressly waived the hearing.
Rather than relying on a defective charging document, petitioner relies on the wording of Rule 4-201(c), particularly the introductory phrase, "In the circuit court, an offense may be tried." He argues:
Clearly, a court which may not try an offense has no jurisdiction. What is at stake is not a defect in the charging document but rather the question of whether the court may try an offense other than under the authority provided by statute and rule. If the means for
permitting trial by information are not followed, the court has no authority to try a case without an indictment. (Citations omitted)
Petitioner's brief at 6-7.
Petitioner's position is quite simple. The circuit court, he maintains, never acquires jurisdiction over a case which is initially filed in the District Court and in which one of the charges is a felony not within the District Court's jurisdiction, until the defendant waives a preliminary hearing or a preliminary hearing is held. Whether a waiver has occurred depends, petitioner asserts, on the accused having been advised of the right to one, which the record must reflect. He maintains that there can be no wai
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