Curtis v. State

Citation395 A.2d 464,284 Md. 132
Decision Date18 December 1978
Docket NumberNo. 153,153
PartiesOttway Leon CURTIS, Sr. v. STATE of Maryland.
CourtCourt of Appeals of Maryland

Martha G. Villmoare, Asst. Public Defender (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

Alexander L. Cummings, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, LEVINE, * ELDRIDGE, ORTH and COLE, JJ.

ELDRIDGE, Judge.

This case concerns the interpretation of a provision of the Maryland Post Conviction Procedure Act, Maryland Code (1957, 1976 Repl. Vol.), Art. 27, § 645A(c), relating to those circumstances under which one is deemed to have "waived" an issue.

I.

The petitioner, Ottway Leon Curtis, Sr., was convicted of first degree murder on September 14, 1967, in the Circuit Court for Prince George's County. Represented by his appointed trial counsel, Curtis took an appeal to the Court of Special Appeals. The only issue raised on that appeal was whether Curtis was "denied due process and equal protection of the laws by the court's inquiry into the prospective jurors' beliefs regarding capital punishment." Answering this question in the negative, the Court of Special Appeals affirmed the conviction. Curtis v. State, 4 Md.App. 499, 243 A.2d 656 (1968). We subsequently denied a petition for a writ of certiorari, Curtis v. State, 252 Md. 730 (1969).

Thereafter, Curtis, represented by different counsel, filed his first petition for relief under the Post Conviction Procedure Act. This petition alleged that: (1) Curtis was denied due process and equal protection because of the admission at his trial of hearsay testimony by the State's witnesses; (2) Curtis's right to a jury trial was denied because a juror was inattentive; (3) his constitutional rights were violated by "the trial court's failure to allow and/or call three or more doctors to testify" as to his sanity; and (4) the trial court erred by disregarding testimony indicating that Curtis was intoxicated at the time of arrest. After a hearing on the merits, the circuit court denied relief on May 28, 1970. An application for leave to appeal was then denied by the Court of Special Appeals.

On March 29, 1976, Curtis instituted the present case by filing his second petition under the Post Conviction Procedure Act. This time Curtis was represented by a third attorney. In this petition he alleged for the first time that he had been deprived of his Sixth Amendment right to "the genuine and effective representation of counsel" at the trial, on direct appeal, and at the first post conviction proceeding. With respect to the trial, the allegation was based on the trial attorney's failure to request a jury instruction on alibi, failure to request an instruction that voluntary intoxication could reduce first degree murder to second degree murder, failure of trial counsel to object to hearsay testimony of certain witnesses, and failure of counsel to request an instruction on the defense of "diminished capacity." The allegation that Curtis's second attorney was inadequate was grounded upon that attorney's failure at the first post conviction proceeding to raise the issue of previous counsel's ineffectiveness. Also in the petition, Curtis, relying on Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), complained of the instruction directing the jury to presume second degree murder from the occurrence of an unlawful homicide and placing the burden on Curtis to reduce the crime to manslaughter.

The State moved to dismiss this second post conviction petition, maintaining that Curtis had waived these allegations for purposes of review under the Post Conviction Procedure Act, Art. 27, § 645A(c), by failing to raise the issues previously. For purposes of ruling on the motion to dismiss, the circuit court accepted as true the following proffered facts:

"1. . . .

"2. . . .

"3. The issue of ineffective assistance of counsel (trial counsel, counsel on direct appeal and counsel at petitioner's first post-conviction hearing) has never been raised by petitioner in any prior court case.

"4. Petitioner was never advised by trial counsel or by counsel appointed on his prior post-conviction case that petitioner should have raised the issue of ineffective assistance of counsel in his first post-conviction petition.

"5. Petitioner was never advised that trial counsel may have been ineffective for his failure to raise the defense of voluntary intoxication as reducing the crime from first degree to second degree murder; nor was petitioner ever advised that trial counsel may have been ineffective for his failure to raise the issue of "diminished responsibility" or for his failure to raise on direct appeal the evidentiary issue dealing with the "double hearsay" testimony of Mary Wedge and Mildred Curtis.

"6. Petitioner is a layman with a seventh grade education and an I.Q. of 72 (borderline range of intelligence). Evidence had been introduced at petitioner's trial that petitioner was a chronic alcoholic who had suffered some brain damage as a result of extended drinking for nineteen (19) years. Petitioner was not aware that he should have raised the issue of ineffective assistance of counsel at his first post-conviction hearing.

"7. Petitioner relied entirely on his court-appointed counsel at trial, on direct appeal . . . and in his first post-conviction case. Petitioner would have raised the issue of ineffective assistance of counsel in his prior post-conviction case had petitioner known that there was a possible issue of ineffective assistance of counsel."

The circuit court granted the State's motion to dismiss the petition. The court held that the matter of inadequacy of counsel had been waived because of Curtis's failure to raise it at the first post conviction proceeding. Relief was also denied with regard to the matter of the homicide instructions in light of Mullaney v. Wilbur, supra, the court holding that the error in the jury instruction was cured by the return of a first degree murder verdict. 1

Curtis then filed an application for leave to appeal to the Court of Special Appeals, raising as the only matter the circuit court's holding that he had waived the inadequacy of counsel allegations. He argued that mere failure to raise the inadequacy of counsel allegations before did not constitute a waiver; instead, he insisted that these allegations could only be deemed to be waived if he himself "could have made, but intelligently and knowingly failed to make, such allegation(s)" 2 previously. Moreover, Curtis maintained that the proffered facts, accepted by the circuit court for purpose of the motion to dismiss, established that there was no intelligent and knowing failure to make the allegations. 3

The Court of Special Appeals granted the application for leave to appeal and affirmed, Curtis v. State, 37 Md.App. 459, 381 A.2d 1166 (1977). The Court of Special Appeals held that the failure of the petitioner's attorney at the first post conviction proceeding to raise the matter of trial counsel's inadequacy resulted in a waiver. 4 In the view of the Court of Special Appeals, only if the representation by counsel at the first post conviction proceeding was constitutionally inadequate, or if there were "special circumstances," would the matter of trial counsel's inadequacy be considered. The Court of Special Appeals held that the representation by the attorney at the previous post conviction proceeding was not constitutionally inadequate and that the proffered facts did not amount to "special circumstances." Consequently, the Court of Special Appeals refused to consider the issue of trial counsel's inadequacy, deeming it waived because it was not raised at the first post conviction proceeding. Under the holding of the Court of Special Appeals, a waiver was found to exist even though, under the proffered facts accepted for purposes of the motion to dismiss, the defendant himself had not "intelligently and knowingly" failed to raise the question of trial counsel's alleged inadequate representation. The court flatly stated that such "intelligent and knowing" failure is not necessary, 37 Md.App. at 463, 381 A.2d 1166.

Curtis then filed in this Court a petition for a writ of certiorari, arguing that the Court of Special Appeals had erroneously interpreted the post conviction procedure statute. Due to the importance of the question presented, we granted certiorari.

II.

The Maryland Post Conviction Procedure Act, Art. 27, § 645A, provides for and regulates the post conviction proceedings by certain persons who have been convicted of crimes. Subsection (c) of § 645A deals with "waiver" as follows:

"(c) When allegation of error deemed to have been waived. For the purposes of this subtitle, an allegation of error shall be deemed to be waived when a petitioner could have made, but intelligently and knowingly failed to make, such allegation before trial, at trial, on direct appeal (whether or not said petitioner actually took such an appeal), in any habeas corpus or coram nobis proceeding actually instituted by said petitioner, in a prior petition under this subtitle, or in any other proceeding actually instituted by said petitioner, unless the failure to make such allegation shall be excused because of special circumstances. The burden of proving the existence of such special circumstances shall be upon the petitioner.

"When an allegation of error could have been made by a petitioner before trial, at trial, on direct appeal (whether or not said petitioner actually took such an appeal), in any habeas corpus or coram nobis proceeding actually instituted by said petitioner, in a prior petition under this subtitle, or in any other proceeding actually instituted by said petitioner, but was not in fact so made, there shall be a rebuttable presumption that said petitioner...

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  • Colvin v. State
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    ...for the first time at a section 645A post conviction proceeding. Davis v. State [285 Md. 19, 400 A.2d 406], supra; see Curtis v. State, 284 Md. 132, 395 A.2d 464 (1978). Upon such a collateral attack, there is presented an opportunity for taking testimony, receiving evidence, and making fac......
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