dissenting:
The Court today holds that the Fourteenth Amendment’s "fundamental fairness” formulation bestows upon an accused in a criminal case a constitutional right to be present when, under Maryland Rule 746 b, the Administrative Judge determines whether to grant the defendant’s motion for a postponement of his scheduled trial date to permit him to retain other counsel. The Court purports to limit its holding to the particular facts of this case, concluding that because a "fair and just hearing [on the motion for postponement] was thwarted by the absence of the defendant,” his conviction must be reversed and a new trial granted. There is, however, no requirement for a hearing under Rule 746 b, much less a hearing at which the accused has a constitutional right to be present. I therefore disagree with the majority that the accused enjoys a constitutional right, either to a hearing on his motion for postponement or to be present when a determination of his motion is made. I am simply unable to glean from the majority opinion the precise reach of its application to the thousands of postponement motions made annually in the trial courts of this State — a concern certain to be shared by the trial judges of this State. I therefore dissent and briefly give my reasons.
We said in Bunch v. State, 281 Md. 680, 381 A.2d 1142 (1978), that in some measure at least a criminal defendant has a Fourteenth Amendment right, recognized in Snyder v. Massachusetts, 291 U.S. 97, 54 S. Ct. 330, 78 L. Ed. 674 (1934), to be present at every stage of his trial. The constitutional right announced in Snyder, as recently restated by the Supreme Court in Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975), is that "an accused has a right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings.” 422 U.S. at 819 (n. 15). That a determination by a court of a pretrial postponement motion is not a "stage of the trial” within the contemplation of what is now Maryland Rule 724 a would seem to be self-evident. Indeed, the reasoning of the numerous cases of this Court cited in the *231majority opinion clearly so indicate, pointing out that the rule is simply declaratory of the common law principle that an accused has a right to be present at all material stages of his trial.1 A number of jurisdictions have specifically held that determination of the merits of a pretrial motion for a continuance is not a stage of the trial at which the accused has a right to be present. See, e.g., State v. Scott, 283 So. 2d 250 (La. 1973); Parrish v. Commonwealth, 472 S.W.2d 69 (Ky. 1971); State v. Holmes, 428 S.W.2d 571 (Mo. 1968); People v. Woods, 27 Ill. 2d 393, 189 N.E.2d 293 (1963); Hogan v. State, 275 P. 355 (Okla. 1929).
The majority, selectively extracting language from Snyder v. Massachusetts, supra, concludes — without regard to whether a ruling on a pretrial postponement motion constitutes a stage of the trial under the common law rule, or under Rule 724 a — that the accused has a Fourteenth Amendment right to be present "whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.” On that premise the majority reasons that because the merits of Hughes’ postponement motion depended upon the particular facts and circumstances of his case, he was in a position to give advice and make suggestions to his counsel. To deny Hughes the right to be present in such an instance, according to the majority, would deny him due process of law because, in the words of Snyder, his presence would not be "useless, or the benefit but a shadow.”
This interpretation of the breadth of the Snyder case, as applied to pretrial motions for continuance, is, I think, completely unwarranted and will wreak havoc with the orderly and certain scheduling of criminal cases for trial. In Brown v. State, 272 Md. 450, 325 A.2d 557 (1974), Judge O’Donnell, speaking for a unanimous Court, exhaustively reviewed the cases involving the accused’s right to be present at every stage of his trial. We there recognized that *232under the federal constitution, substantive testimony concerning the guilt or innocence of the defendant cannot be submitted during his involuntary absence anddn violation of his constitutional right to be confronted by witnesses. We emphasized that the accused’s right of presence was "at every material stage in the trial” (emphasis in original), 272 Md. at 458, and we discussed at length the constitutional aspects of the right, as articulated in Snyder. We observed that Snyder involved a Massachusetts statute authorizing the jury to view the scene of the crime. Snyder was on trial for murder and at the opening of his trial the prosecution made a motion that the jury be allowed to view the crime scene. Snyder asked that he be permitted to accompany the jury to the scene of the crime; his motion was denied. At the crime scene, the prosecution and Snyder’s counsel were permitted to point out to the jury particular features of the view, i.e., the distances between points and the lighting conditions. The Court held in Snyder that denial of the defendant’s request to accompany the jury to the scene of the murder was not a violation of his Fourteenth Amendment due process right because he could not have been of any assistance to his counsel had he been present. It was in this context, as we observed in Brown, that the Supreme Court stated: "So far as the Fourteenth Amendment is concerned, the presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.” 291 U.S. at 107-08. It was in this light that the Court said:
"We assume in aid of the petitioner that in a prosecution for a felony the defendant has the privilege under the Fourteenth Amendment to be present in his own person whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge. Thus, the privilege to confront one’s accusers and cross-examine them face to face is assured to a defendant by the Sixth Amendment.... Again, defense may be made easier if the accused is permitted to be present at *233the examination of jurors or the summing up of counsel, for it will be in his power, if present, to give advice or Suggestion or even to supersede his lawyers altogether and conduct the trial himself.. ..
".. . Nowhere in the decisions of this court is there a dictum, and still less a ruling, that the Fourteenth Amendment assures the privilege of presence when presence would be useless, or the benefit but a shadow.” 291 U.S. at 105-07.
In Brown, we quoted with approval from People ex rel. Lupo v. Fay, 13 N.Y.2d 253, 196 N.E.2d 56, 246 N.Y.S.2d 399 (1963), cert. denied, 376 U.S. 958 (1964), in which the New York Court of Appeals said (13 N.Y.2d at 256-57) that due process under Snyder "mandates the presence of a defendant at his felony trial to the extent only that his presence is necessary for a fair and just hearing of his cause and he must be deemed to have the absolute right to hear everything the jury hears ... so that his may be the opportunity to confront his accusers and advise with his counsel.” By way of placing the language in Snyder in proper perspective, we referred in Brown to the following passage from Snyder.
"A fertile source of perversion in constitutional theory is the tyranny of labels. Out of the vague precepts of the Fourteenth Amendment a court frames a rule which is general in form, though it has been wrought under the pressure of particular situations. Forthwith another situation is placed under the rule because it is fitted to the words, though related faintly, if at all, to the reasons that brought the rule into existence. A defendant in a criminal case must be present at a trial when evidence is offered, for the opportunity must be his to advise with his counsel [citations omitted], and cross-examine his accusers. [Citations omitted.] Let the words 'evidence’ and 'trial’ be extended but a little, and the privilege will apply to stages of the cause at which the function of counsel is mechanical *234or formal and at which a scene and not a witness is to deliver up its message. In such circumstances the solution of the problem is not to be found in dictionary definitions of evidence or trials. It is not to be found in judgments of the courts that at other times or in other circumstances the presence of a defendant is a postulate of justice. There can be no sound solution without an answer to the question whether in the particular conditions exhibited by the record the enforced absence of the defendant is so flagrantly unjust that the Constitution of the United States steps in to forbid it.” 291 U.S. at 114-15.
The Court in Snyder was plainly focusing on the trial of the case and on the defendant’s ability to assist his counsel in substantive matters relating to his guilt or innocence.2 To apply the general language of Snyder to routine matters preliminary to trial, like a last-minute motion for a continuance to obtain new counsel, is, in my opinion, a swegpingly broad misreading of that case. The Court pointed out in Brown that matters unrelated to the issue of the accused’s guilt, which do not involve his right of confrontation or cross-examination or bear a reasonable substantial relationship to the opportunity to defend his innocence, do not implicate his due process right to be present at every stage of the trial. The Court observed in Brown that by necessity conferences are held between the court and counsel "for the purpose of discussing scheduling” and "other collateral matters of procedure,” at which the accused has no right to be present since such conferences "have not been held to be a part of the trial.” 272 Md. at 479. Indeed, the Court said in Brown:
"To require that all such conferences be conducted in open court, or that the defendant be present in chambers, or at a bench conference, on each occasion would create administrative burdens, diminish *235the decorum of the proceedings, and in many instances involve security risks — none of which can be balanced by any gain from the defendant’s presence.” 272 Md. at 479-80.
As heretofore indicated, there is neither a right to a hearing on a postponement motion under Rule 746 b, or under the state or federal constitutions. Nor is there anything in the facts of this case which would warrant the Court’s holding that Hughes, had he been present, could have materially assisted his counsel when the Administrative Judge was determining the merits of the continuance motion.
The record discloses only that on the morning of the trial, which had been set many weeks previously, a private lawyer approached Hughes’ Public Defender counsel and advised him that Hughes’ family wanted to engage his services and was financially able to do so. The Public Defender contacted Hughes’ mother who confirmed the fact that she had spoken to the private attorney and was financially able to retain him to represent her son. The Public Defender then conferred with Hughes who indicated his concurrence with the family’s decision to retain the private counsel. There is nothing to indicate that Hughes believed his Public Defender counsel to be incompetent or otherwise unprepared to try the case. In these circumstances, to afford Hughes a constitutional right to be present when the Administrative Judge decided his motion for a postponement is just plain wrong, unsupported by Snyder, or any other case, which has come to my attention.
I, of course, do not disparage the importance of having counsel of one’s choice, but that right must be timely exercised. A guilty accused may effectively avoid punishment if he is permitted to maneuver, carte blanche, for postponements or delay. Today’s decision gives him a new tool to that end, to the great detriment of the administration of justice in this State. Because the Court’s decision is premised on a constitutional right, trial courts will be reluctant to limit the rule announced today to requests for *236postponements made on the day of trial by an accused for the ostensible purpose of obtaining new counsel, and reluctant to act on the basis of a waiver by counsel of the possible right of presence of the accused. Until the limits and procedures of the rule announced today are refined by future decisions, the result will be to cast yet another burden on the operation of the criminal justice system.
Accordingly, I would affirm the convictions in this case. Judge Rodowsky has authorized me to state that he concurs with the views expressed herein.
. The historical reasons underlying the development of the common law right of presence of the accused at his trial are well chronicled in United States v. Gregorio, 497 F.2d 1253 (4th Cir. 1974), cert. denied, 419 U.S. 1024.
. Pretrial evidentiary hearings on motions to suppress clearly fall within Snyder’s coverage. In such instances, the issue is whether evidence pertaining to the defendant’s guilt will be used against him at trial.