Boucher v. Warden, Md. Penitentiary

• Decision Date: 13 September 1968
• Docket Number: No. 120,120
• Citation: 5 Md.App. 51,245 A.2d 420
• Parties: Charles J. BOUCHER v. WARDEN, MARYLAND PENITENTIARY, State of Maryland. Post Conviction
• Court: Court of Special Appeals of Maryland

Page 51

5 Md.App. 51

245 A.2d 420

Charles J. BOUCHER v. WARDEN, MARYLAND PENITENTIARY, State of Maryland.

Post Conviction No. 120.

Court of Special Appeals of Maryland.

Sept. 13, 1968.

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.

ORTH, Judge.

On 29 March 1967 the applicant was found guilty of forgery and uttering by a jury in the Circuit Court for Montgomery County and sentenced to imprisonment for a term of 4 years on each offense, the sentences to run concurrently. On appeal this Court affirmed the judgments. Boucher v. State, No. 175, September Term, 1967, filed 29 February 1968, unreported. On 12 June 1967 the applicant, in proper person, filed a petition for relief under the Uniform Post Conviction Procedure Act. Counsel was appointed to represent him on 29 June. The State answered the petition on 10 July. On 11 July, by order of court, appearance of counsel was stricken and other counsel appointed. On 7 August another petition for relief under the Act was filed in proper person. By order of court of 21 September leave was granted upon motion made by the applicant to amend the petition of 12 June and withdraw the petition of 7 August. The amended petition was filed on 2 October and answered by the State on 20 October. The amended petition alleged that the applicant had been illegally tried, convicted and sentenced and deprived of his constitutional rights in that:

1) His 'identity and whereabouts were revealed to the Montgomery County, Maryland Police Department by means of an unlawful arrest without a warrant by the Washington, D.C. Police Department';

2) Fruits of the illegal arrest were used to convict him;

3) The identification of him at the trial by the manager of the food store where the forged check was uttered was improper and prejudicial because the manager had been theretofore shown a single photograph of him taken by the Washington, D.C. Police Department. This was prejudicial: The manager was thereby informed that the applicant had been arrested on criminal charges in the District of Columbia; and the photographic procedure was impermissibly suggestive because only one and not several photographs had been shown. The applicant claimed that the prejudice was compounded 'because the manager was told by one Montgomery County detective that the petitioner when arrested had in his possession some of the same type of checks that the Manager had cashed', which was a 'false statement.'

After an evidentiary hearing held 30 October in the Circuit Court for Montgomery County, Judge Plummer M. Shearin in presiding, the relief prayed was denied. ¹ An order to that effect and accompanying memorandum was filed 1 December. The applicant, in proper person, filed a 'Notice of Appeal' on 6 November, merely stating that he 'appeals the decision of Judge Shearin in his post conviction hearing' but on 30 November an application for leave to appeal was filed on his behalf by his attorney containing allegations, the substance of which are summarized. The applicant 'was not allowed to present evidence' concerning the allegations raised. He had summoned three witnesses. Two appeared. The third, a detective of the Washington, D.C. Police Department did not appear and a request for continuance to procure him was denied. The witnesses who appeared 'were not permitted to testify as to the main points raised.' The manager who identified the applicant at the trial and a detective of the Montgomery County Police were not permitted to testify 'concerning the circumstances' in which the manager had identified the applicant, objection thereto being sustained on the ground that the question had been litigated at trial. 'This was error because the question of prejudicial identification and the manner of identification had not been raised at trial and had not been waived.' A petition filed 11 October to employ a handwriting expert was denied. The reason for the request was to show that the applicant did not sign the check admitted against him. The applicant contends that the court erred in precluding the proffered testimony, in denying the continuance and in denying the petition for the employment of the handwriting expert. As a further reason why the order should be reversed he alleges that 'the State admitted that the cashier at the store who allegedly received the check in question from the defendant was unable to identify the defendant as the man who passed the check.' In a memorandum in support of the application for leave to appeal, counsel for the applicant asserts: 'Neither the accused nor his trial attorney had known that fact at the time of trial and it only came out by accident at the post conviction hearing. The fact that the cashier could not identify the accused is exculpatory because, if offered in evidence, it reasonably might have cleared or tended to clear him of guilt in the eyes of the jury.' He claims that this was a suppression of material evidence exculpatory to him. ²

The hearing court found, 'assuming, without deciding, that the arrest, search and seizure in the District of Columbia were unlawful, the petitioner has failed to sustain his claim that the fruits thereof were used to convict him in Montgomery County of the crime for which he is now incarcerated. It is apparently conceded that no physical evidence so obtained was used at the trial of the petitioner in this court.' Since no fruits of the arrest were received in evidence against the applicant, the question of the legality of the arrest was immaterial. Ervin v. State 4 Md.App. 42, 241 A.2d 142; Hutchinson v. State, 1 Md.App. 362, 230 A.2d 352. An illegal arrest does not affect the jurisdiction of the court, is not a ground for dismissing an indictment or information, and does not preclude trial and conviction for the offense. Nadolski v. State, 1 Md.App. 304, 229 A.2d 598. The applicant's 'identity and whereabouts' were not revealed to the Montgomery authorities by a search within the concept of 'unreasonable search and seizure' as it relates to physical evidence obtained. The identification of an accused is not 'tangible' evidence which is the fruit of an unlawful search and the doctrine of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441, even if applicable in such circumstances as here presented, does not control prosecutions in this State. Veihmeyer v. State, 3 Md.App. 702, 240 A.2d 649; Tender v. State, 2 Md.App. 692, 237 A.2d 65. Therefore the hearing court did not err in precluding evidence as to the legality of the applicant's arrest. And since it appears from the Application for Leave to Appeal that the testimony of the missing witness was desired on this issue, the court did not err in refusing a continuance to obtain his testimony.

We find no abuse of discretion in the denial by the lower court of the petition to employ a handwriting expert in an effort to prove that the check uttered was not signed by the applicant. The sufficiency and weight of the evidence is no ground for post conviction relief. Nixon v. Director, Patuxent Institution, 1 Md.App. 14, 226 A.2d 352. And we found on direct appeal that the evidence adduced at the trial on the merits was sufficient to sustain the conviction so the matter has been finally litigated. Md.Code (1967 Repl.Vol.) Art. 27, § 645A(b).

The allegations with respect to the identification of the applicant present more difficulty. At the trial a manager of the store where the check was cashed testified that one of his duties was to approve checks above a certain limit, that the applicant came to him and inquired if he would accept a check, which the applicant exhibited, that the manager told him it would be accepted if proper identification were shown, that the applicant upon the purchase of merchandise presented to a cashier the...