Hyde v. Warden of Md. Penitentiary

• Decision Date: 01 July 1964
• Docket Number: No. 82,82
• Parties: John N. HYDE v. WARDEN OF the MARYLAND PENITENTIARY. Post Conviction
• Court: Maryland Court of Appeals

Page 641

235 Md. 641

202 A.2d 382

John N. HYDE v. WARDEN OF the MARYLAND PENITENTIARY.

Post Conviction No. 82.

Court of Appeals of Maryland.

July 1, 1964.

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

BRUNE, Chief Judge.

The applicant, John N. Hyde, was convicted of murder in the first degree in May, 1961, and was sentenced to life imprisonment. His conviction was affirmed in Hyde v. State, 228 Md. 209, 179 A.2d 421 (1962) cert. denied, 372 U.S. 945, 83 S.Ct. 938, 9 L.Ed.2d 970 (1963). This application for post conviction relief was heard by Judge Berry in the Circuit Court for Baltimore County and was denied by him with the statement that none of the contentions raised came 'within the purview of post conviction procedure.' The applicant was present at the hearing and took the stand, but in view of the court's ruling no testimony as to the facts alleged in his application or supplemental application was taken.

The grounds alleged as bases for relief were: (1) illegal arrest; (2) use of illegally seized evidence; (3) use of improper means to obtain confession; (4) suppression of certain physical evidence taken from the applicant; (5) failure to give a lie detector test, which he was willing to take; (6) false testimony by a witness for the State; (7) an unfair police line-up; and (8) incompetence of trial counsel.

With his petition the applicant submitted extracts from the record of his trial and we have taken judicial notice of the record extract or appendix to his brief on the original appeal.

Judge Berry's view was that contentions (1) and (2) had been waived because objections based thereon could have been but were not raised at the trial or on appeal. Since his case was tried about a month before the decision of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, and the case was heard and decided on appeal to this Court before the decision of the United States Court of Appeals for the Fourth Circuit in Hall v. Warden, 313 F.2d 483, the consideration thereof on post conviction was not necessarily precluded by waiver. However, on the record in Hyde's appeal we think that the arrest was lawful as made by police officers after having knowledge that a felony had been committed and with reasonable grounds to believe that Hyde had committed it. This, we think, is sufficiently shown by evidence that the police had seen the body of the murdered woman, who had been stabbed to death, had interviewed witnesses who testified at the trial that they had seen the applicant at or leaving the home of the deceased on the morning of the murder close to the time of the discovery of the murder (which was very shortly after its commission), that they had a description of the wanted man, and that they then went to the home of the applicant. In addition, there was testimony which was uncontradicted that he met them at the door, that he was then wearing a bathrobe and slippers, that he told them he was washing clothes, that he invited the officers in and readily agreed to their looking at the clothes which were in the basement where the washing machine was located. He was actually told that he was under arrest when they were in the basement and after Hyde had admitted having 'been down the street,' though at first he claimed that no one was at home. 'Down the street' may have meant only 'out of the house', and not the home of the deceased, which was only a few doors away from Hyde's residence. (Before Hyde was taken to the police station he admitted having been in the deceased's house that morning. The testimony of one officer indicates that this statement was made before Hyde's actual arrest, but that of the officer in charge places the time of arrest as we have stated it above.)

The testimony shows that the srart of the search at least was consented to, and we think that it was in any event valid, both as to articles found in the basement and others later in the applicant's room as being incidental to and substantially contemporaneous with a lawful arrest, whether made before or after, or partly before and party after, the actual arrest. See Cannon v. State, Md., 200 A.2d 919. The evidence seized during the search was accordingly admissible.

With regard to contention (4), the alleged suppression of evidence by the State in not offering in evidence certain articles taken from the applicant at the time of his arrest and of the search (of which he complains in contentions (1) and (2)), the record on appeal makes it clear that the applicant knew about these articles, which consisted of clothing which he had been washing just before his arrest. No blood stains were found on them when tested, which was, of course, after they had been washed. Such evidence does not seem material. In any event, in view of Hyde's knowledge of these articles, this contention is not supportable. Dyson v. Warden, 233 Md. 630, 196 A.2d 455.

Contention (5)--failure to give a lie-detector test which the applicant says he was willing to take--involves no violation of any constitutional right of which we are aware.

Contentions (6) and (7) are without merit in our view on the basis of the record on Hyde's appeal, even if we assume that either or both of them is available in this proceeding. Contention (6) is that one witness committed perjury. There is no charge of the State's knowing use of perjury, and hence no ground for post conviction relief is present. Even if it were, the charge of perjury is not well founded. It proceeds largely upon the appellant's reading of a part of her testimony as stating that she saw two men. The passage in question reads as follows: 'I seen this man coming down the step and then the other one and I thought, gee, that's funny and he had a khaki jacket on and light khaki pants.' The applicant claims that there is an inference that there were two men coming away from the house. We think that 'coming down the step and then the other one' refers to one step and a second step, not a second man. A reading of her whole testimony confirms this, since elsewhere she clearly speaks of only one man and never of a second. This witness' identification of the applicant at a police line-up was weakened on cross-examination, but not destroyed and the applicant's attack goes only to a question of credibility which was for determination by the trier of facts, and was determined by him. In considering the matter, the trial judge observed with regard to testimony of this witness (Mrs. Thatcher): 'her hesitancy in the identification is of no significance in view of the fact that she saw whoever it was leaving the house speaking to Mrs. Kirkpatrick and Mrs. Kirkpatrick testified clearly that the person she spoke to outside the house was the defendant.'

Contention (7) as to allegedly unfair conduct of a police line-up is barred as a matter which the applicant could have raised at his trial or on appeal, but which he did not press. Dorris v. Warden, 222 Md. 586, 158 A.2d 105. In any event the allegations appear too insubstantial to warrant relief--'that it took two observations by alleged witnesses to select your Petitioner from among a group of strangers, none of whom, except your Petitioner, was known to the alleged witnesses.' See Proctor v. State, 223 Md. 394, 400-401, 164 A.2d 708; Presley v. State, 224 Md. 550, 168 A.2d 510, cert. den. 368 U.S. 957, 82 S.Ct. 399, 7 L.Ed.2d 389; Sippio v. State, 227 Md. 449, 177 A.2d 261.

Contention (8) is that the applicant's trial counsel was incompetent. Judge Berry held that this afforded no ground for post conviction relief, relying on Scott v. Warden, 222 Md. 596, 158 A.2d 761. That case and Young v. Warden, 218 Md. 636, 639, 145 A.2d 238, cited in Scott, indicate that the incompetence of counsel is available on post conviction only if there is an allegation of fraud or collusion or if objection or complaint has been made in the trial court. These limitations are no longer recognized. See Myers v. Director (a post conviction case), 233 Md. 621, 195 A.2d 716, in which the case was remanded for the determination of two claims, one of which was the alleged incompetence of counsel. See also the following recent post conviction cases in which questions of the competence of counsel have been considered without any mention of the restrictions stated in Scott and Young: Wampler v. Warden, 231 Md. 639, 649, 191 A.2d 594; Drehoff v. Warden, 231 Md. 654, 656, 191 A.2d 421; Kohne v. Warden, 232 Md. 633, 192 A.2d 761; Slater v. Warden, 233 Md. 609, 611, 195 A.2d 675; Bucholtz v. Warden, 233 Md. 614, 195 A.2d 690; Dyson v. Warden, 233 Md. 630, 196 A.2d 455.

Judge Berry made no actual finding of fact on contention (8), but in considering it he did say: 'If he [William L. K. Barrett (since deceased)] and Mr. Nolan together represented this man, this Court would believe and take judicial notice of the fact that he was represented by competent counsel because of his personal knowledge particularly of Mr. Barrett's superior qualifications and long experience.'

The allegaions of incompetence of trial counsel are that they failed: (a) to summon jail guards to testify to the applicant's nosebleeds while in prison; (b) to object to certain testimony alleged to be prejudicial; (c) to make all necessary motions; (d) to file a motion for discovery before trial; (e) to request sequestration of witnesses; (f) to cross-examine one witness; and (g) to follow the applicant's instructions as to a plea of insanity.

Item (c) is too vague to have any readily ascertainable meaning. If it is intended to refer to failure to...