Davis v. Warden of Md. Penitentiary

• Decision Date: 23 June 1964
• Docket Number: No. 130,130
• Citation: 235 Md. 637,201 A.2d 672
• Parties: Howard DAVIS v. WARDEN OF the MARYLAND PENITENTIARY. Post Conviction
• Court: Maryland Court of Appeals

Page 637

235 Md. 637

201 A.2d 672

Howard DAVIS v. WARDEN OF the MARYLAND PENITENTIARY.

Post Conviction No. 130.

Court of Appeals of Maryland.

June 23, 1964.

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

BRUNE, Chief Judge.

The applicant was tried in the Criminal Court of Baltimore before Judge Carter, sitting without a jury, and was convicted on two separate charges of robbery. In each case the victim was a cab driver. One robbery was committed with, and the other without, a deadly weapon. The applicant was sentenced to imprisonment for consecutive terms of ten years on the lesser offense and of twenty years on the greater. He did not appeal.

His petition under the Post Conviction Procedure Act alleged four grounds for relief: (1) denial of the equal protection of the laws; (2) conviction upon the uncorroborated testimony of the victims; (3) that other persons convicted of similar offenses received lesser sentences; and (4) that his prior criminal record was improperly admitted in evidence. Judge Cullen properly rejected them all.

As Judge Cullen pointed out, the substance of the applicant's first two contentions 'is that the trial Judge believed the testimony of the prosecuting witnesses rather than the Petitioner and as a result thereof, he was denied equal protection.' Such a contention is without merit. The matter is merely one of credibility which goes to the sufficiency of the evidence and is not a ground for post conviction relief. Fisher v. Warden, 230 Md. 612, 614, 185 A.2d 198; Slater v. Warden, 233 Md. 609, 195 A.2d 675. Furthermore, since a victim is not an accomplice, his testimony does not require corroboration (Basoff v. State, 208 Md. 643, 654, 119 A.2d 917; Gregoire v. State, 211 Md. 514, 128 A.2d 243; Seidman v. State, 230 Md. 305, 318-322, 187 A.2d 109); and identification by one eyewitness, if believed, is sufficient for conviction. Coates v. State, 232 Md. 72, 191 A.2d 579.

Each of the sentences imposed upon the applicant was within the statutory limit and his third contention--alleged disparity between his sentences and those imposed upon others--affords no basis for post conviction relief. Cothorn v. Warden, 221 Md. 581, 155 A.2d 652; Ellinger v. Warden, 224 Md. 648, 653, 167 A.2d 334. See also Apple v. State, 190 Md. 661, 668, 59 A.2d 509; Duff v. State, 229 Md. 126, 182 A.2d 349; Stevens v. State, 232 Md. 33, 42-43, 192 A.2d 73, cert. den. 375 U.S. 886, 84 S.Ct. 160, 11 L.Ed.2d 45. Cf. Howard v. Fleming, 191 U.S. 126, 135-36, 24 S.Ct. 49, 48 L.Ed. 121.

Assuming, without deciding, that the admission of the defendant's prior criminal record, if improper (his contention (4)), would be a ground for post conviction relief, there is nothing to show that its admission was improper. The applicant took the stand in his own defense, and a prior criminal record tending to impeach his credibility was therefore admissible. Cousins v. State, 230 Md. 2, 185 A.2d 488; Piles v. State, 233 Md. 487, 197 A.2d 238.

After his application was denied the applicant sought to expand or add to his claims. Claims first presented on application for leave to appeal are not properly before us for consideration. Lomax v. Warden, 232 Md. 657, 194 A.2d 269. This applies to the charge now sought to be added to the contention that the past criminal record was not admissible, that the record was false. This addition seems an obvious afterthought. If it had any foundation, it was as well known to the applicant when he filed his petition as after his petition had been dismissed, and no reason is shown for not asserting it in the first place.

He also added claims that at his trial the judge, the State's attorney, and his court appoin...