Hall v. Warden, Maryland Penitentiary

Decision Date23 January 1962
Docket NumberCiv. No. 13450.
Citation201 F. Supp. 639
PartiesLeonard HALL, Jr. v. WARDEN, MARYLAND PENITENTIARY.
CourtU.S. District Court — District of Maryland

William F. Mosner, Towson, Md., for petitioner.

Thomas B. Finan, Atty. Gen., Robert F. Sweeney and Thomas W. Jamison, III, Asst. Attys. Gen., for respondent.

THOMSEN, Chief Judge.

This petition for a writ of habeas corpus was filed by a state prisoner (Hall), who was convicted of first degree murder by a jury in the Circuit Court for Baltimore County, Maryland (Menchine and Lindsay, JJ), and was sentenced to death. The conviction was affirmed on appeal, Hall v. State (July 8, 1960), 223 Md. 158, 162 A.2d 751. Hall's application for relief under the Uniform Post Conviction Procedure Act, Anno.Code of Md., 1957 ed., Art. 27, secs. 645A-645J (the UPC PA), was heard and denied by the Circuit Court for Baltimore County (Raine, J), and leave to appeal was denied by the Court of Appeals of Maryland in an opinion which discussed all of the points raised, namely: "(a) that he was not afforded an adequate opportunity to testify in his own behalf; (b) that he was denied the right to counsel when questioned by police shortly after his arrest and gave a damaging statement, which was used against him and which could not have been obtained from him if he had then had counsel; and (c) that evidence obtained by an illegal search was used both to obtain damaging admissions from him and as evidence against him at his trial." Hall v. Warden (March 10, 1961), 224 Md. 662, 168 A.2d 373. A petition for a writ of certiorari was denied by the Supreme Court of the United States (October 9, 1961), 368 U.S. 867, 82 S.Ct. 78, 7 L.Ed.2d 65.

Because of the particular circumstances, that life is at stake, and that neither this court nor any Maryland State court has yet construed Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, this court issued a writ of habeas corpus, so that petitioner might have an opportunity to present his evidence on all issues. At the hearing before this court, however, petitioner and his counsel both stated that they wished to submit their case on the transcript of the trial prepared for the appeal and the transcript of the UPCPA hearing. The State also submitted the case on the record. Counsel for petitioner argued (1) that Hall was denied an opportunity to testify at his trial; (2) that the search of Hall's hotel room was illegal and that the use of material seized therein (a) as evidence at his trial, and (b) to procure damaging admissions from him, violated his constitutional rights, and (3) that Hall's confession was not voluntary, because he had been denied the right to counsel by the police and for other reasons.

The facts of the case pertinent to questions (2) and (3) are set out at length in the careful opinion of Chief Judge Brune on the original appeal, 223 Md. at 163 et seq., 162 A.2d at 754 et seq. They will not be repeated herein, but that opinion should be read in connection with this opinion. The evidence shows the callous murder of a woman, aged 66, committed in connection with the robbery of a tavern operated by the victim and her husband. On the stand, in the UPCPA proceeding, Hall admitted the robbery and admitted tying the woman and leaving her on the floor, but said that she was alive when he left.

(1)

The alleged denial of an adequate opportunity to testify.

At his trial and on appeal from his conviction Hall was represented by two lawyers employed for him by his family. Before the statement which Hall made to the police was admitted in evidence against him, Hall testified out of the presence of the jury concerning the taking of the statement and his treatment from the time the police first picked him up until the statement was made. After the judges decided to admit the statement in evidence, that testimony was read to the jury. After the State had closed its case the defense called six witnesses, who testified, and then called Hall, but he did not have an opportunity to testify before court adjourned. Overnight his counsel reconsidered the desirability of Hall's taking the stand. The essential facts on this phase of the case are summarized in the opinion of the Court of Appeals in the UPCPA proceeding, 224 Md. at 665, 168 A.2d at 375.

Hall testified before Judge Raine in that proceeding, as did his junior counsel. Judge Raine considered the facts quite fully and delivered a carefully reasoned opinion, in which he said, inter alia: "He Hall merely yielded to the request or demands of his attorneys and their advice that he stay off the stand and the fact that if he took the stand he was going to admit that he robbed the tavern in question and he tied up the victim may well have persuaded them to use every reasonable effort to keep him off the stand."

The Court of Appeals, on application to review Judge Raine's decision, said: "The question comes down, we think, to whether an alleged error in trial tactics by a defendant's own counsel amounts to a deprivation of due process of law under either the Fourteenth Amendment or the Constitution of this State. We are not prepared to say that the choice here in question was a bad one; but if we assume that it was, and if we further assume that Hall did not intend to acquiesce in it, his own counsel's decision not to call him as a witness involved no action by the State, and did not, in our opinion, amount to a violation of Hall's constitutional rights, and hence affords no ground for relief under the UPCPA. Even on direct appeal the trial tactics of counsel are not ordinarily reviewable by this Court. Hardesty v. State, 223 Md. 559, 563, 165 A.2d 761; Madison v. State, 200 Md. 1, 87 A.2d 593, and errors in trial tactics do not afford a basis for relief under the UPCPA; * * * The applicant's contention would seem to lead logically to a retrial of every criminal case resulting in a conviction — some because the defendant (as here) did not testify in his own defense, others because he did so testify." 224 Md. at 665-666, 168 A.2d at 375.

The issue was fully and fairly considered by the State Courts. The question of fact was not free from difficulty, but Judge Raine had the advantage of observing both Hall and his lawyer witness, who is a member of the bar of Judge Raine's court, as is also the lawyer who was senior counsel for Hall at the trial. Petitioner did not take the stand at the hearing before me, although he was given an opportunity to do so; instead, he stated in open court that he wished to submit on the record. Under the evidence so submitted, I find that Hall acquiesced, reluctantly, in the decision of his counsel. The conclusions reached by Judge Raine and by the Court of Appeals of Maryland on this point did not deny Hall any constitutional right.

(2)

The alleged illegal search and use of material obtained thereby as evidence against Hall at his trial and to procure damaging admissions from him.

Petitioner relies primarily on Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, decided by the Supreme Court on June 19, 1961. The State contends: (a) that under the law applicable to this case the use of material seized by State officers in an illegal search would not deprive a defendant of any constitutional right, and that Mapp v. Ohio does not help this petitioner, whose conviction was affirmed on appeal before that decision; (b) that any challenge to the legality of the search and the use of the fruits thereof was waived by petitioner's failure to raise the question either at his trial or on appeal; and (c) that the search was not illegal, because Hall consented to it.

(a) In Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, decided in 1949, the Supreme Court held in effect that the Fourteenth Amendment prohibits unreasonable searches and seizures by state officers, but that the exclusionary rule of Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A. 1915B, 834, would not then be imposed upon the states as an essential ingredient of the right. See Mapp v. Ohio, supra, at p. 650, 81 S.Ct. 1684.

At the time of the trial and at the time the conviction was affirmed on appeal, the Maryland law permitted the admission into evidence in felony cases of material seized by State officers in an unlawful search, but prohibited its admission in most misdemeanor cases. Anno. Code of Md., 1957 ed., Art. 35, sec. 5; Salsburg v. State, 201 Md. 212, 94 A.2d 280, aff'd sub nom, Salsburg v. Maryland, 346 U.S. 545, 74 S.Ct. 280, 98 L.Ed. 281; Barker v. Warden, 208 Md. 662, 119 A.2d 710; Givner v. State, 210 Md. 484, 124 A.2d 764; Mulcahy v. State, 221 Md. 413, 158 A.2d 80.

Term after term the Supreme Court refused to overturn the doctrine of the Wolf case until the States had "adequate opportunity to adopt or reject the Weeks rule." Irvine v. California, 347 U.S. 128, 134, 74 S.Ct. 381, 384, 98 L.Ed. 561; Mapp v. Ohio, supra, at p. 654, 81 S.Ct. 1684. But in Mapp v. Ohio, decided in June 1961, the opinion of the Court, delivered by Mr. Justice Clark, said: "* * * we can no longer permit that right to remain an empty promise" and held that "all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court." 367 U.S. 643, at 655, 660, 81 S.Ct. 1684 at 1691.

Until the Supreme Court itself clarifies the point, it is impossible for any other court or judge to be certain whether and to what extent the Supreme Court intended the decision in Mapp v. Ohio to be retrospective. A majority of the Court of Appeals of New York has concluded that the exclusionary rule stated herein should be applied in a case where the judgment of conviction had not yet become final, because of a pending appeal, at the time Mapp v. Ohio was decided. People v. Loria (Nov. 30, 1961), 10 N.Y. 2d 368, 223 N.Y.S.2d 462, 179 N.E.2d 478. See also Shorey v. State (January 23, 1962), Md., 177 A.2d 245. But it has not yet been held...

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