Davis v. State

• Decision Date: 16 October 1978
• Docket Number: No. 161,161
• Citation: 40 Md.App. 467,391 A.2d 872
• Parties: Lorenzo DAVIS, Jr. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 467

40 Md.App. 467

391 A.2d 872

Lorenzo DAVIS, Jr. v. STATE of Maryland.

No. 161.

Court of Special Appeals of Maryland.

Oct. 16, 1978.

Certiorari Granted Dec. 15, 1978.

Jess G. Schiffmann, Asst. Public Defender, with whom was Alan H. Murrell, Public Defender on the brief, for appellant.

Alice G. Pinderhughes, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., William A. Swisher, State's Atty. for Baltimore City, David L. Katz and H. Gary Bass, Asst. State's Attys. for Baltimore City on the brief, for appellee.

Argued before GILBERT, C. J., and MORTON and THOMPSON, JJ.

MORTON, Judge.

Appellant, Lorenzo Davis, Jr., was convicted by a jury in the Criminal Court of Baltimore (Carter, J.) on July 15, 1966, on charges of armed robbery and assault with intent to murder. Subsequently, he received consecutive sentences totalling fifty years. His convictions were affirmed by this Court in an unreported opinion, No. 311, September Term, 1967, filed July 2, 1968.

Davis filed a petition for post conviction relief on October 19, 1977, pursuant to which a hearing was held in the Criminal Court of Baltimore (Greenfeld, J.). The hearing judge denied relief and this Court granted Davis leave to appeal from that decision. The case was transferred to our regular docket, briefs were filed and oral arguments of counsel were received.

Appellant raised a defense of alibi at his trial twelve years ago. On that issue the trial judge instructed the jury in the following manner:

"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." (Emphasis added.)

As Judge Greenfeld properly pointed out, the last sentence in the above-quoted instruction is "virtually identical" to the language which State v. Grady, 276 Md. 178, 345 A.2d 436 (1975) held to be defective as placing an impermissible burden of proof on the defendant. Accordingly, as the hearing judge noted, the issue is whether an erroneous alibi instruction, not objected to at trial, may now afford appellant a basis for post conviction relief.

Appellant challenges the denial of relief on three grounds. First, he seeks to invoke the aid of Code, art. 27, § 645A(d), which provides:

" * * * no allegation of error shall be deemed to have been finally litigated 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." (Emphasis added.)

Appellant argues that Grady overruled existing Maryland law with respect to the alibi defense. We conclude, however, that his reliance on Grady is misplaced.

Grady acknowledged that an alibi instruction which seemed to place the burden of proof on the defendant violated the dictates of In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), as extended and clarified By Mullaney V. Wilbur, 421 U.S. 684, 95 s.ct. 1881, 44 l.ed.2d 508 (1975). ¹ The Court of Appeals in Grady, however, also made it clear that the principle that "it is incumbent upon the State to prove a defendant's guilt and to do so beyond a reasonable doubt" was already "well-established by the many decisions of this Court." (Citations omitted.) Grady, supra, 276 Md., at 181, 345 A.2d at 438. While the instruction in Grady, as in the present case, was apparently based on dicta contained in Floyd v. State, 205 Md. 573, 109 A.2d 729 (1954), the Court observed that such an instruction was an "erroneous interpretation" of Floyd. ² Grady, supra, 276 Md. at 183-84, 345 A.2d 436. For these reasons, we reject appellant's contention that Grady created "new law" within the meaning of § 645A(d), since the relief provided by that section is triggered only when a standard "not previously recognized" is imposed upon the State's trial courts. Here, the standard in question, that the State must prove every element of the alleged crime beyond a reasonable doubt, has "long been in effect in Maryland." Id. at 182, 345 A.2d at 438.

Davis argues next that even if he is not entitled to relief under § 645A(d), he is, nonetheless, entitled to a new trial under § 645A(c) on the ground that he did not "intelligently and knowingly" waive his right to object to the faulty alibi instruction. His only claims in support of this contention are that "the law regarding alibi evidence was then commonly misunderstood by most of the bench and the bar in Maryland" and that he was "ignorant of the law and relied on counsel."

Section 645A(c) creates a rebuttable presumption that "a waiver has in fact occurred where the alleged error has not been timely asserted." Jones v. Warden, 2 Md.App. 343, 349, 234 A.2d 472, 476 (1967). This proposition has since been restated on several occasions by this Court, most recently in Curtis v. State, 37 Md.App. 459, 381 A.2d 1166 (1977), where we found that § 645A(c) establishes "a presumption of waiver from mere silence." Curtis, supra, at 469, 381 A.2d at 1170. To rebut this statutory presumption of waiver, a petitioner must show "special circumstances" which would excuse his previous failure to object to the error.

We find appellant's allegations insufficient to establish the "special circumstances" required by the statute. As Chief Judge Murphy stated, writing for this Court in Jones :

"In view of the nature and substance of the allegations, to simply allege that he did not know of the existence or availability of them, and that his counsel did not advise him concerning them, does not present 'special circumstances' excusing Jones's failure previously to assert them." Jones, supra, 2 Md.App., at 350, 234 A.2d at 476. (Emphasis added.)

We think the rationale of Jones is controlling here. Appellant argues only...