Bromwell v. Williams

• Decision Date: 30 December 1977
• Docket Number: Civ. No. K-76-926.
• Citation: 445 F. Supp. 106
• Parties: Eugene BROMWELL # 130-995 v. Warden, Mr. Ralph L. WILLIAMS, Maryland House of Correction, etc.
• Court: U.S. District Court — District of Maryland

445 F. Supp. 106

Eugene BROMWELL # 130-995 v. Warden, Mr. Ralph L. WILLIAMS, Maryland House of Correction, etc.

Civ. No. K-76-926.

United States District Court, D. Maryland.

December 30, 1977.

Jess G. Schiffmann, Baltimore, Md., for plaintiff.

Francis B. Burch, Atty. Gen., and John P. Stafford, Jr., Asst. Atty. Gen., Baltimore, Md., for defendant.

FRANK A. KAUFMAN, District Judge.

Bromwell, currently incarcerated in the Maryland House of Correction, seeks herein habeas corpus relief. Petitioner has pressed in this case a number of quests for relief most of which have been denied in this Court's Memorandum and Order of March 15, 1977.¹ Only one of Bromwell's contentions remains for decision.

Petitioner was tried by a jury on January 7, 1975 in the Circuit Court for Dorchester County, Maryland, Judge C. Burnam Mace presiding, on Criminal Information No. 3086, which charged him with common law assault and battery, and on Criminal Information No. 3087, which charged him with a handgun law violation. While the voir dire panel was present in the courtroom prior to the selection of the jury, the prosecution moved to consolidate those two informations with Criminal Information No. 3088, which charged Bromwell with breaking and entering and larceny. After defense counsel objected to such consolidation, Judge Mace denied the motion. Immediately thereafter, the voir dire panel was sworn and the jury selected. Two veniremen were excused because they personally knew the defendant or a member of his family. Another was excused because she did not believe she could render an impartial verdict. None of the prospective jurors, including those excused, professed to have formed an opinion as to the guilt or innocence of the defendant. Neither defense counsel nor Bromwell made any objection to any members of the panel or of the jury on the ground that they had overheard the discussion of the consolidation motion relating to a criminal information not before that jury. Nor did either of them mention or refer in any way to that occurrence.

During the trial, the State presented testimony that at approximately 12:30 a. m. on August 26, 1974, State Trooper Parks, while patrolling in a state police car, observed a black Cadillac speeding in the opposite lane, crossed lanes and pursued the Cadillac. When the car stopped for a traffic light, the Trooper stepped out of his police cruiser. However, the light changed and the Cadillac started off. The Trooper returned to his cruiser, activated the red flashers, and turned on the siren. Shortly thereafter, the Cadillac stopped again.

Trooper Parks once again left his own car and approached the other vehicle which contained four or five males. He asked the operator to step from the car, telling him that he was under arrest for exceeding the speed limit by more than 30 m. p. h. During the trial the Trooper identified Bromwell as the operator of the Cadillac. Hearing taunts from within the vehicle and anticipating trouble, the Trooper decided to take Bromwell back to the police cruiser and took hold of Bromwell's upper right arm. Thereupon, Bromwell complained and explained that his arm was bandaged due to a burn. Trooper Parks testified that he then dropped his grip to Bromwell's wrist and led Bromwell back to the cruiser. At that time, Parks noticed the other occupants of Bromwell's car exiting the Cadillac. It was also at about that moment that the Trooper was struck in the mouth by Bromwell, and subsequently struck or kicked three or four more times by Bromwell before the latter fled on foot. One of the other occupants of the Cadillac started the car and picked up Bromwell as Bromwell fled down the street.

Trooper Parks returned to his cruiser and pursued the Cadillac which shortly came to a stop at a corner. There, another struggle ensued between Bromwell and Trooper Parks. At trial Parks testified that he was struck several times by Bromwell before he grabbed his adversary and they both fell into some bushes. A large crowd gathered. Meanwhile, Parks was kicked about the head and body several times. A few minutes later Patrolman Harris of the Cambridge city police arrived on the scene and arrested Bromwell. Parks was bloodied and his uniform was torn. Harris testified that Parks informed him that Parks had been attacked by Bromwell.

Harris proceeded to transport Bromwell to the Dorchester County Jail in Harris' patrol car. Approximately four hours later during a routine inspection of Harris' patrol car, the Cambridge police discovered a paper bag containing an unloaded .32 revolver.² That weapon was stuffed between the cushions of the back seat. Harris said that he did not leave the car unattended at any time during the night nor did he see anybody get into his patrol car other than Bromwell.

Bromwell elected not to testify in his own behalf and produced no evidence in his defense other than one of the state troopers other than Parks, and a medical report.

On the above-related evidence, the jury found Bromwell guilty beyond a reasonable doubt on both the assault and battery charge and the handgun law charge. Judge Mace sentenced Bromwell to five years' confinement for assault and to a consecutive two-year term for the handgun violation. Those two sentences were also expressly made consecutive to any other sentences Bromwell was then serving. On appeal, petitioner's conviction was affirmed by the Court of Special Appeals of Maryland. Bromwell's application for post-conviction relief was subsequently denied by the Circuit Court for Dorchester County. The Court of Special Appeals denied Bromwell's application for leave to appeal.

The question arises as to whether the mention before the voir dire panel of the charges pending against Bromwell for breaking and entering and larceny deprived Bromwell of his constitutional right to a fair and impartial jury as guaranteed by the Sixth and Fourteenth Amendments.³

Waiver

The State argues that petitioner waived any constitutional right he may have had with respect to the selection of the jury by failing to challenge the voir dire panel or any individual members of it at trial. Bromwell first suggested that the jury panel's presence during the consolidation motion was constitutionally infirm, in his appeal to the Court of Special Appeals of Maryland. That Court held that, under Maryland Rule 1085, petitioner could not raise such an objection for the first time on appeal in that Court. Accordingly, that Court did not reach the merits of the contention. Nor was that contention considered in the state post-conviction proceeding because questions decided on direct appeal are not reviewable in such a proceeding. Thus, there was no obligation upon Bromwell to press that contention in the state post-conviction proceeding as a condition to raising it in this Court in this case, since to do so would have been useless. 28 U.S.C. § 2254; see Lefkowitz v. Newsome, 420 U.S. 283, 291 n.8, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975); Thompson v. Peyton, 406 F.2d 473 (4th Cir. 1968). However, in any event, the State has stated that it is not raising any issue herein concerning failure by petitioner to exhaust state remedies as to that issue. Accordingly, pursuant to Jenkins v. Fitzberger, 440 F.2d 1188, 1189 (4th Cir. 1971), the State's waiver of the exhaustion requirement is accepted by this Court.

A defendant is entitled to every reasonable presumption against waiver of fundamental constitutional rights. See Brookhart v. Janis, 384 U.S. 1, 4, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966); Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Pitts v. North Carolina, 395 F.2d 182, 188-89 (4th Cir. 1968). In Zerbst, Mr. Justice Black wrote (304 U.S. at 464, 58 S.Ct. at 1023): "A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege." Before a waiver of a constitutional right can be found, examination of the particular facts and circumstances of the case must establish the person's knowledge of his right and his intent to forgo it. See Humphrey v. Cady, 405 U.S. 504, 517, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972); United States v. Gomez, 457 F.2d 593, 595-96 (4th Cir. 1972); Kelly v. Peyton, 420 F.2d 912, 914 (4th Cir. 1969). Because a waiver by a defendant must be the product of his own knowing decision, defendant is not always and necessarily bound by the default or decision of his counsel. See Humphrey v. Cady, supra, 405 U.S. at 517, 92 S.Ct. 1048. Nor is a federal constitutional right usually deemed waived by simple inadvertence. See Mottram v. Murch, 458 F.2d 626, 629-30 (1st Cir.), rev'd on other grounds, Murch v. Mottram, 409 U.S. 41, 93 S.Ct. 71, 34 L.Ed.2d 194 (1972) (per curiam); cf. Hunt v. Warden, 335 F.2d 936, 944 (4th Cir. 1964).

In Murch v. Mottram, 409 U.S. 41, 93 S.Ct. 71, 34 L.Ed.2d 194 (1972), the petitioner, after an explicit warning by the state trial judge in petitioner's first post-conviction proceeding that petitioner had to raise all grounds for relief at that time or be deemed to have waived them, filed a second state post-conviction proceeding. Therein, petitioner was denied relief on the ground of his failure to raise in his first post-conviction proceeding the claim stated by him in his second such proceeding. Mottram then sought federal habeas corpus relief. In a per curiam opinion, a majority of the Supreme Court held that Mottram had made a knowing and intelligent waiver in the state court. The Supreme Court particularly noted the following comment of the federal district court after the latter had conducted an evidentiary hearing:

From the Court's personal observation of petitioner, it is apparent that he is of at least average intelligence and well deserves his reputation as a cunning "jailhouse lawyer." He was represented at the time by counsel of unquestioned competence and integrity. It is inconceivable that his counsel did not fully explain to petitioner the possible

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