Davis v. State, 100
| Decision Date | 23 April 1979 |
| Docket Number | No. 100,100 |
| Citation | 285 Md. 19,400 A.2d 406 |
| Parties | Lorenzo DAVIS, Jr. v. STATE of Maryland. |
| Court | Maryland Court of Appeals |
Thomas J. Saunders, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender and Jess G. Schiffmann, Asst. Public Defender, Baltimore, on brief), for appellant.
Alice G. Pinderhughes, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., Baltimore, on brief), for appellee.
Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, ORTH and COLE, JJ.
This appeal revolves around a portion of the instructions given to the jury by the Criminal Court of Baltimore in the trial of Lorenzo Davis, Jr. thirteen years ago. The court advised the jury:
If the jury considering all the evidence, inculpatory and exculpatory, entertain a reasonable doubt of the defendant's participation in the crime, they should acquit him. Thus a defendant is entitled to acquittal if the alibi testimony, taken into consideration with all the other evidence in the case, raises a reasonable doubt of guilt. But, in order to prove an alibi conclusively, the testimony must cover the whole time in which the crime by any possibility might have been committed and it should be rigid, it should be subjected to rigid scrutiny. 1
Davis was convicted of two armed robberies, two assaults and the carrying of a concealed weapon. He is presently incarcerated under sentences imposed totalling fifty years.
On direct appeal, Davis attacked the judgments on some nine grounds, none of which went to the jury instruction. The Court of Special Appeals affirmed the judgments, and we denied the petition for a writ of certiorari. Davis v. State, 4 Md.App. 492, 243 A.2d 616 (1968), Cert. denied, 252 Md. 730 (1969).
On 13 August 1969 Davis filed a petition seeking relief under the Uniform Post Conviction Procedure Act (the Act), Maryland Code (1957, 1976 Repl.Vol.) art. 27, §§ 645A-645J. See Maryland Rules BK 40 and BK 41. The petition was dismissed "without prejudice" on 25 November 1969 by order of the Criminal Court for Baltimore. On 19 October 1977 Davis filed another petition under the Act. As far as we can ascertain from the record before us, this petition contained the same allegations of error raised by the first petition. A hearing on the petition was held on 28 February 1978. The post conviction court denied relief and dismissed the petition by its order of 8 March 1978. The Court of Special Appeals granted Davis' application for leave to appeal, transferred the case to its regular docket, and, after considering briefs and oral argument, affirmed the judgment of the post conviction court. Davis v. State, 40 Md.App. 467, 391 A.2d 872 (1978). We granted Davis' petition for a writ of certiorari.
There is no issue as to the impropriety of the instruction. The State concedes, as it must, that the alibi instruction was erroneous. State v. Grady, 276 Md. 178, 345 A.2d 436 (1975) is dispositive. The alibi instruction given here was, as the post conviction judge pointed out, virtually identical with that which we found to be defective in Grady. Since the Grady instruction was erroneous, the instruction here was also erroneous. In the words of the post conviction judge, "(t)he question then is whether this erroneous instruction can be the basis for post conviction relief."
The Uniform Post Conviction Procedure Act established a comprehensive scheme providing a remedy for challenging collaterally the legality of incarceration under conviction of crime and sentence of death or imprisonment therefor. From the time of its original enactment by Acts 1958, ch. 44, the Act contained a proviso precluding relief if the error alleged as the basis to set aside or correct the sentence had been "previously and finally litigated or waived in the proceedings resulting in the conviction, or in any other proceeding that the petitioner has taken to secure relief from his conviction." § 645A(a). Section 645H related to waiver of grounds for relief thus:
All grounds for relief claimed by a petitioner under this Act must be raised in his original or amended petition, and any grounds not so raised are waived unless the court on hearing a subsequent petition finds grounds for relief asserted therein which could not reasonably have been raised in the original or amended petition. 2
"Waiver" was not additionally defined, and "finally litigated" was not further discussed by statute or rule.
The Act was amended to adopt the definition of waiver espoused by Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). See Bristow v. State, 242 Md. 283, 289, 219 A.2d 33 (1966). Acts 1965, ch. 442, § 1 repealed and re-enacted, with amendments, § 645A. Section 2 of ch. 442 repealed § 645H. New subsection (b) of § 645A prescribed when an allegation of error Shall be deemed to be finally litigated. New subsection (c) set out when an allegation of error Shall be deemed to have been waived. New subsection (d) declared when an allegation of error Shall not be deemed to be finally litigated or waived. 3
In claiming that the erroneous instruction entitles him to a reversal of the judgments and the grant of a new trial, Davis argues the three questions presented in his petition for the issuance of a writ of certiorari.
(1)
Did the hearing judge err in denying (Davis) post conviction relief based on "new law", Art. 27, § 645A(d), regarding alibi defense?
Subsection (d) of the Act prescribes:
For the purposes of this subtitle ("Post Conviction Procedure") and notwithstanding any other provision hereof, no allegation of error shall be deemed to have been finally litigated 4 or waived where, subsequent to any decision upon the merits thereof or subsequent to any proceeding in which said allegation otherwise may have been waived, any court whose decisions are binding upon the lower courts of this State holds that the Constitution of the United States or of Maryland imposes upon State criminal proceedings a procedural or substantive standard not theretofore recognized, which such standard is intended to be applied retrospectively and would thereby affect the validity of the petitioner's conviction or sentence.
Thus, at the heart of the question is whether there was a decision binding on the lower courts of this State which held, subsequent to Davis' trial, that the Constitution of the United States or of Maryland imposed upon this State's criminal proceedings a procedural or substantive standard as to the defense of alibi not therefore recognized so as to affect the validity of his convictions and sentences. See State v. Evans, 278 Md. 197, 211, 362 A.2d 629 (1976).
The Grady instruction, which we held to be erroneous, had repeated, verbatim, language in Floyd v. State, 205 Md. 573, 581, 109 A.2d 729 (1954). 5 We noted in Floyd that an alibi proceeds upon the idea that an accused was elsewhere at the time of the commission of the crime, and, thus, it "does, of course, if thoroughly established, preclude possibility of guilt." 205 Md. at 581, 109 A.2d at 732. We cautioned that
all the evidence in a criminal case is to be considered together, and the jury are not to weigh merely the evidence relating to the alibi and determine from that alone whether they have a reasonable doubt of guilt. To warrant a conviction in a criminal case the charge must be proved beyond a reasonable doubt. . . . If the jury, considering all the evidence, inculpatory and exculpatory, entertain a reasonable doubt of the defendant's participation in the crime, they should acquit him. Thus a defendant is entitled to acquittal if the alibi testimony, taken into consideration with all the other evidence in the case, raises a reasonable doubt of guilt. (Id. (citation omitted).)
Then we added:
But in order to prove an alibi conclusively, the testimony must cover the whole time in which the crime by any possibility might have been committed, and it should be subjected to rigid scrutiny. (Id.)
Grady provided the first opportunity for us to examine Floyd. In the meantime the Supreme Court of the United States had decided In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) and Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). Winship held that the Federal Constitution mandated the principle that it is incumbent upon the State to prove a defendant's guilt, and to do so beyond a reasonable doubt. This principle, we observed in Grady, 276 Md. at 181-182, 345 A.2d at 438, "is well-established by the many decisions of this Court," and "has long been in effect in Maryland." "In Winship, the Court concluded that the due process clause of the fourteenth amendment protects an accused in a state criminal cause against conviction except upon proof beyond a reasonable doubt of every element of the crime with which he is charged." Grady, 276 Md. at 182, 345 A.2d at 438. See Winship, 397 U.S. at 361-364, 90 S.Ct. 1068. Five years later Mullaney elaborated upon the impact of Winship with regard to the burden of proof in homicide cases where the defendant claims he acted in the heat of passion. 421 U.S. at 704, 95 S.Ct. 1881. We concluded that the teachings of Winship and Mullaney
apply to the issue of who has the burden of proof and what that burden is when an accused relies on an alibi as a defense. In sum, under the Federal Constitution, as well as the law of Maryland, the burden is on the State to prove all elements of the alleged crime and to do so beyond a reasonable doubt; hence, the defendant does not have to establish his alibi, not even by a minimal standard of proof. "Evidence of alibi should come into a case like any other evidence and must be submitted to the jury for consideration of whether the evidence as a whole on the issue of presence proves the defendant's guilt beyond a reasonable doubt." Smith v. Smith, 454 F.2d 572, 578 (5th Cir. 1971), Cert. denied, 409 U.S. 885, 93 S.Ct. 99, 34 L.Ed.2d 141 (1972). (Grady, 276 Md. at 182, 345 A.2d...
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