Brady v. State

Decision Date11 October 1961
Docket NumberNo. 135,135
Citation226 Md. 422,174 A.2d 167
PartiesJohn L. BRADY v. STATE of Maryland.
CourtMaryland Court of Appeals

E. Clinton Bamberger, Jr., Baltimore (George B. Woelfel, Annapolis, on the brief), for appellant.

Thomas W. Jamison, III, Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., and C. Osborne Duvall, State's Atty. for Anne Arundel County, Annapolis, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, PRESCOTT, HORNEY and MARBURY, JJ.

BRUNE, Chief Judge.

On this appeal from a denial of post conviction relief, the appellant, Brady, contends that he was deprived of a fair trial by reason of the fact that the State did not disclose at or before the trial that it then had in its possession a statement of his accomplice Boblit admitting that he, Boblit, had actually strangled the victim.

Boblit and Brady were each convicted of first degree murder in separate trials. Brady elected a jury trial and was tried first; Boblit elected a court trial. Each appealed from his conviction and the cases were argued together in this Court, and each of the convictions was affirmed on appeal, sub nom. Boblit v. State, 220 Md. 454, 154 A.2d 434. It was conceded that Boblit conspired with Brady to rob the victim, Brooks, but each claimed that the other had actually strangled Brooks and that the killing was separate and distinct from the robbery. We held otherwise, pointing out that the robbery was not complete at the time Brooks was killed, although Boblit contended on appeal that he did not actively assist Brady in strangling the victim. The sole contention raised on behalf of Brady related to the voluntariness of his confession, in which he admitted participation but denied killing Brooks, although, as pointed out in the opinion, he took the stand and admitted virtually everything set forth in his confession. On this appeal, Brady concedes that '[a]t his trial the appellant [Brady] admitted participation in the robbery in the course of which the homicide occurred.' As we held on the original appeals of Boblit and Brady, the killing was clearly in perpetration of the robbery and hence covered by the statute, Code (1957), Art. 27, Sec. 410, which defines such a killing as murder in the first degree.

Brady subsequently filed a motion to set aside the judgment and sentence on the ground that an unsigned statement given to the police by Boblit, of which he claims he had no knowledge until after the affirmance on his appeal, although it was produced at the trial of Boblit, would have corroborated his testimony that Boblit did the actual killing. We dismissed his appeal from the denial of that motion on the ground that his only relief was under the Post Conviction Act, Code (1960 Supp.), Art. 27, Sec. 645A et seq. Brady v. State, 222 Md. 442, 160 A.2d 912.

Brady then applied for post conviction relief, and his application was denied after a full hearing, his application being on substantially the same grounds. The trial court filed an elaborate opinion holding that there had been no denial of a constitutional right. We granted leave to appeal.

At the trial of Boblit the State offered the unsigned statement of Boblit in which he admitted strangling the victim. The court excluded it because it was unsigned. 1 In several prior statements Boblit had stated that Brady did the killing and so testified on the stand. These statements were made available to Brady's counsel before trial, but the one in which Boblit said that he had done the actual killing was not so made available. At the trial of Brady the unsigned statement of Boblit was not produced by the State nor offered in evidence. This trial, as noted, took place before the trial of Boblit. The State knew in advance of Brady's trial that Brady's chief reliance was upon the hope that the jury might find him guilty of first degree murder without capital punishment if it believed his testimony that Boblit did the killing. The importance of this consideration was stressed in the case of Day v. State, 196 Md. 384, 391, 76 A.2d 729. See also United States ex rel. Almeida v. Baldi, 3 Cir., 195 F.2d 815, 33 A.L.R.2d 1407, certiorari denied, 345 U.S. 904, 73 S.Ct. 639, 97 L.Ed. 1341, rehearing denied, 345 U.S 946, 73 S.Ct. 828, 97 L.Ed. 1371; United States ex rel. Thompson v. Dye, 3 Cir., 221 F.2d 763, certiorari denied Commonwealth of Pennsylvania v. United States ex rel. Thompson, 350 U.S. 875, 76 S.Ct. 120, 100 L.Ed. 773.

We think that there was a duty on the State to produce the confession of Boblit that he did the actual strangling or at least to inform counsel for the accused of its existence. The suppression or withholding by the State of material evidence exculpatory to an accused is a violation of due process. See People v. Fisher, Gen.Sess. N.Y.Co., 23 Misc.2d 391, 192 N.Y.S.2d 741, 746; United States ex rel. Almeida v. Baldi, supra; United States ex rel. Thompson v. Dye, supra; Griffin v. United States, 87 U.S.App.D.C. 172, 183 F.2d 990. For cases involving the related problem of the prosecution's failing to correct testimony known to be untrue, and holding such failure and the use of such testimony to amount to a denial of due process, see Alcorta v. State of Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed. 2d 9; Napue v. People of State of Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217; People v. Savvides, 1 N.Y.2d 554, 154 N.Y.S.2d 885, 136 N.E.2d 853 (non-disclosure and failure to correct untrue testimony as denying a fair trial). It is none the less a denial of due process if the withholding of material evidence is without guile (Griffin v. United States; People v. Savvides; both just cited) but it seems fair to add, that the appellant here does not contend that failure to produce Boblit's statement in issue was the result of guile.

The State contends that Boblit's confession of the actual strangling would not have been admissible at Brady's trial and hence that its being withheld could not have prejudiced Brady's case. It is true that as a general rule an extrajudicial confession or admission by a third party that he committed the offense for which the defendant is on trial is not admissible. Munshower v. State, 55 Md. 11; Baehr v. State, 136 Md. 128, 110 A. 103; and this has been recognized in Brennan v. State, 151 Md. 265, 134 A. 148, 48 A.L.R. 342, and in Thomas v. State, 186 Md. 446, 47 A.2d 43, 167 A.L.R. 390. This general rule, which is the majority rule in this country as well as the rule in England, has been severely criticized, notably in Mr. Justice Holmes' brief and pointed dissent in Donnelly v. United States, 228 U.S. 243, at pages 277-278, 33 S.Ct. 449, at page 461, 57 L.Ed. 1035, and in 5 Wigmore, Evidence (3rd ed.) §§ 1476, 1477, and McCormick, Evidence, § 255. The A.L.I. Model Code of Evidence, § 509, rejects it.

Both the Brennan and the Thomas cases recognized that the rule is not without exception and have limited its operation. It has also been at least limited, so as not to be an absolute rule, in some other jurisdictions. Hines v. Commonwealth, 136 Va. 728, 117 S.E. 843, 35 A.L.R. 431; Newberry v. Commonwealth, 191 Va. 445, 460-462, 61 S.E.2d 318, 325-326 (co-defendant's confession exculpating defendant); Sutter v. Easterly, 354 Mo. 282, 189 S.W.2d 284, 162 A.L.R. 437; Osborne v. Purdome, Mo., 250 S.W.2d 159, (following the Sutter case after an intervening case in which Sutter had not been applied, State v. Gorden, 356 Mo. 1010, 204 S.W.2d 713); People v. Lettrich, 413 Ill. 172, 108 N.E.2d 488; Cameron v. State, 153 Tex.Cr.R. 29, 217 S.W.2d 23. Some cases emphasize the unavailability of the declarant as a witness, and in Newberry v. Commonwealth, supra, his refusal to testify was held to amount to unavailability.

In Thomas v. State, supra, 186 Md. at page 452, 47 A.2d at page 46, Judge Delaplaine, speaking for the Court said: '[W]e hold that where a witness has made a written confession that he committed the crime with which the defendant is charged, the defendant should be allowed to introduce the confession in evidence and question him in regard to the confession and the circumstances under which he made it. We further hold that where in a criminal case an officer has secured contradictory confessions from two different persons, the defense should be permitted to question him about both confessions and we further hold that such a confession by a third party is admissible unless it appears that there was some collusion in obtaining it.'

The reasons for the adoption of the general rule and also for the development of exceptions to it or limitations upon it all rest in large measure upon concern for the trustworthiness of the declaration against interest proposed...

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