Estep v. State

• Decision Date: 20 January 1972
• Docket Number: No. 135,135
• Parties: George Samuel ESTEP, Jr., et al. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 53

14 Md.App. 53

286 A.2d 187

George Samuel ESTEP, Jr., et al. v. STATE of Maryland.

No. 135.

Court of Special Appeals of Maryland.

Jan. 20, 1972.

Certiorari Denied April 4, 1972.

[286 A.2d 189] Frank G. Perrin, Waldorf, for appellants.

Gilbert Rosenthal, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., and John C. Hancock, State's Atty., Charles County on brief, for appellee.

Argued before ORTH, MOYLAN and GILBERT, JJ.

GILBERT, Judge.

George Samuel Estep, Jr., Melvin Leon Marshall and John Francis Marshall, appellants, were convicted of rape by a jury in Charles County, presided over by Judges Philip H. Dorsey, Jr. and James C. Mitchell. The jury's verdict was '* * * guilty on the first count without capital punishment as to each of the defendants.' Estep received a sentence of 18 years imprisonment. Both Marshalls received 15 year terms.

The appellants assign as error the following:

'I. Were the Rights of the Defendants violated under the Fourteenth Amendment to the Federal Constitution and under the Uniform Extradition Law as passed by the Maryland Legislature when the Defendants were extradited from the District of Columbia without a hearing and brought to Maryland for the arraignment on July 27, 1970 and when brought to trial on November 5, 1970?

II. Were the rights of the Defendants violated when they were arrested on March 13 and 14, 1970, removed to the District of Columbia and confined in the District of Columbia while they were being charged in Maryland with Rape and were not appointed counsel until July 27, 1970? ¹

III. Were the rights of the Defendants violated when one attorney was assigned to represent three defendants and there was a conflict of interest in the defense of the defendants that prevented the attorney from properly cross-examining?

IV. Did the court err in allowing the husband of * * * (the prosecutrix) to testify as to statements which she gave her husband at the time that she arrived at her home quite sometime after the alleged occurrence and quite sometime after she was let out of the vehicle by the Defendants?

V. Were the Defendants prejudiced when the Court allowed the State to cross-examine the Defendant, Melvin Leon Marshall, concerning prior inconsistent statements?

VI. Did the Court err in not granting the Defendants' motion for acquittal or when the jury decided against the weight of the evidence?

VII. Were the Defendants prejudiced by having an unfair lineup in the District of Columbia and allowing the evidence in the trial?

VIII. Were the rights of the Defendants prejudiced when the defense attorneys were misled into believing that there were no prior statements or inconsistent statements made by the Defendants?

IX. Did the Court err in not granting a mistrial as requested by Attorney Bowling?'

THE FACTS

The prosecutrix testified that on the night of March 12, 1970, she had just parked her automobile on the parking lot adjacent to her apartment house located in the District of Columbia, and was walking toward her apartment when she was approached by an armed man who told her not to scream. The armed person was joined by three others, and the four of them, along with the prosecutrix, entered a motor vehicle. After the men took from the prosecutrix her wallet and car keys they proceeded to drive a short distance to where the prosecutrix had parked her automobile. All of the persons, including the prosecutrix, then transferred from the vehicle into the automobile of the prosecutrix. She was placed in the back seat and the car was then driven to a gasoline station. The prosecutrix stated that a gun was pointed toward her at all times and she was told to keep her head away from the window. The vehicle was at the gasoline station for approximately five minutes. After departing from the service station, the automobile was driven to a wooded area in Maryland where the prosecutrix was instructed to remove her clothing. She was then advised that if she complied with her abductors' request that no harm would come to her or her children. The prosecutrix was ravished on the back seat of the car by two of the men who had abducted her. After sexual relations with those two had been completed, she was then removed from the vehicle and compelled to submit to the other two men on a blanket that was placed on the ground near the car.

Following the multiple rapes, the prosecutrix was ordered to dress and all returned to the vehicle and drove away. Five or ten minutes later, at the suggestion of one of her assailants, ² the vehicle returned to the place where the rapes had occurred and the prosecutrix was again compelled to submit to sexual relations with each of her abductors. The prosecutrix was then taken to an alley in the District of Columbia where she was put out of the car with the admonition that if she revealed what had occurred she and her children would be killed. She hailed a cab and went immediately to her apartment where she told her husband what had transpired. The police were called.

The prosecutrix was subsequently shown a series of photographs from which she picked the appellants and another. All four men were arrested in Charles County on March 13 and 14 and were then taken to the District of Columbia. ³ The prosecutrix again identified the appellants and the other male on April 13, 1970 in a lineup in the District of Columbia. She further made an in-court identification of the appellants and the other person at the time of the trial.

The appellants' version of the facts was somewhat different. Estep admitted to sexual relations with the prosecutrix, but stated that he had been dating her from the middle of February and that he met her on the parking lot by prearrangement. Both of the Marshalls denied any sexual relationship with the prosecutrix. All three appellants agreed that the fourth youth was not with them on the night of March 12.

I

On September 11, 1970, the appellants, Estep and John Francis Marshall, filed a motion in the trial court to dismiss the indictments against them on the ground that they were not properly extradited. No such motion was filed as to Melvin Leon Marshall, and we do not here consider the appellants' first point as to him. Rule 1085.

The issue raised by Estep and John Francis Marshall was decided by this Court in Wilkins v. State, 4 Md.App. 334, 242 A.2d 808 (1968), and Wilkins v. State, 5 Md.App. 8, 245 A.2d 80 (1968). In Wilkins, 4 Md.App. 334, 242 A.2d 808, Wilkins, who had been serving a 5 to 15 year sentence in the District of Columbia Correctional Institute at Lorton, Virginia, was brought to Maryland for trial under a writ of Habeas Corpus Ad Prosequendum. He argued that inasmuch as both Maryland and the District of Columbia had enacted the Uniform Criminal Extradition Act (Maryland Code Article 41, §§ 16 to 43), the Maryland court lacked jurisdiction over him. As was made vividly clear in the first Wilkins case, such an argument ignores the dictates of Article 41, § 40 of the Maryland Code, which provides:

'Nothing in this subtitle contained shall be deemed to constitute a waiver by this State of its right, power or privilege to try such demanded person for crime committed within this State, or of its right, power or privilege to regain custody of such person by extradition proceedings or otherwise for the purpose of trial, sentence or punishment for any crime committed within this State, nor shall any proceedings had under this subtitle which result in, or fail to result in, extradition be deemed a waiver by this State of any of its rights, privileges or jurisdiction in any way whatsoever.'

In the instant case, the appellants were likewise detained in the District of Columbia Correctional Institute, and the argument herein advanced by them is identical to that utilized by Wilkins in both of his appeals. We adopt the language of Judge Anderson in Wilkins v. State, 5 Md.App. 8, 245 A.2d 80 (1968):

'This contention is devoid of merit. A Federal prisoner, under § 4085 of Title 18, U.S.C.A., may be taken into a State court for trial with the consent of the Attorney General of the United States, and his production is wholly a matter for the Attorney General to determine; Marsino v. Higgins, D.C., 10 F.2d 534, affirmed Marsino v. United States, 270 U.S. 627, 46 S.Ct. 206, 70 L.Ed. 768 and the prisoner may not complain, Chapman v. Scott, D.C., 10 F.2d 156, affirmed, 2 cir., 10 F.2d 690, cert. denied, 270 U.S. 657, 46 S.Ct. 354, 70 L.Ed. 784; Troyan v. United States Government, D.C., 240 F.Supp. 383. Even in the absence of statute, the Attorney General has the authority to transfer a Federal prisoner to a State court for trial as a matter of comity between sovereigns. Ponzi v. Fessenden, 258 U.S. 254, 261, 42 S.Ct. 309, 66 L.Ed. 607; State v. White, 39 Okl.Cr. 242, 264 P. 647.'

II

Appellants' second argument attempts to equate their incarceration in the District of Columbia Correctional Institute ⁴ with a preliminary hearing. They argue that Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970) and Kochel v. State, 10 Md.App. 11, 267 A.2d 755 (1970) constitutionally mandate the presence of counsel at all critical stages of criminal proceedings. Coleman and Kochel hold that a preliminary hearing is a 'critical stage' requiring the appointment of counsel in all such hearings arising on and after June 22, 1970. The holding in Coleman, however, is not to be applied retroactively and is inapplicable to those preliminary hearings which occurred prior to June 22, 1970. Kochel v. State, supra.

Even if we were to assume, which we do not, that incarceration while awaiting indictment is a critical stage requiring the presence of counsel, we cannot ignore, as appellants chose to do, that Coleman is not to be applied in retrospect and that no counsel would have been required from the date of their apprehension on March 13 and 14, 1970 until June 22, 1970, the date Coleman was decided.

Appel...