Lane v. Warden, Maryland Penitentiary

• Decision Date: 03 June 1963
• Docket Number: No. 8748.,8748.
• Citation: 320 F.2d 179
• Parties: Richard LANE, Appellant, v. WARDEN, MARYLAND PENITENTIARY, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

320 F.2d 179 (1963)

Richard LANE, Appellant, v. WARDEN, MARYLAND PENITENTIARY, Appellee.

No. 8748.

United States Court of Appeals Fourth Circuit.

Argued January 21, 1963.

Decided June 3, 1963.

Walter J. Wadlington, III (Court-assigned counsel), New Orleans, La. (Daniel J. Meador, Charlottesville, Va., on the brief), for appellant.

Jacques E. Leeds, Asst. Atty. Gen. of Maryland (Thomas B. Finan, Atty. Gen. of Maryland, on the brief), for appellee.

Before SOBELOFF, Chief Judge, and BOREMAN and J. SPENCER BELL, Circuit Judges.

BOREMAN, Circuit Judge.

Richard Lane appeals from a denial of his petition for habeas corpus by the United States District Court for the District of Maryland¹ following his convictions in a Maryland state court as a third offender. Three separate indictments were returned against Lane — two for selling narcotics and one for having narcotics in his possession in violation of Maryland laws.² Pursuant to Maryland practice each of the three indictments averred, in addition to the facts of the particular offenses for which he was to be tried, the details of two prior convictions for violations of the Maryland narcotics laws. The indictments, in their entirety, were read to the jury at the outset of the trial. In his petition for habeas corpus and on this appeal, Lane alleges that he unsuccessfully demurred to the indictments on the ground that they contained averments of these prior offenses. Nothing contradictory appearing in the record, this allegation must be accepted as true. Cf. Turner v. State of Maryland, 303 F.2d 507, 509 (4th Cir., 1962); Clark v. Warden Maryland Penitentiary, 293 F.2d 479, 481 (4th Cir., 1961), cert. denied, 369 U.S. 877, 82 S. Ct. 1149, 8 L.Ed.2d 279 (1962); Holly v. Smyth, 280 F.2d 536, 537 (4th Cir., 1960).

Following jury verdicts of guilty, Lane was sentenced as a third offender under each indictment to fifteen years³ in the state penitentiary, the sentences to run concurrently. Lane is now serving those sentences. On direct appeal to the Maryland Court of Appeals, Lane again contended, inter alia, that informing the jury of his previous offenses at the outset of his trial deprived him of a fair and impartial hearing. This contention was rejected and the convictions were affirmed in Lane v. State, 226 Md. 81, 172 A.2d 400 (1961). Application to the United States Supreme Court for certiorari was denied, 368 U.S. 993, 82 S.Ct. 611, 7 L.Ed.2d 529 (1962).

Lane then petitioned the federal District Court for writ of habeas corpus, attacking the validity of the state sentences under the Fourteenth Amendment on the ground that a fair hearing before the jury was precluded by the prosecution by informing the jury, at the beginning of his trial, of his alleged prior offenses. In response to a show cause order, the State filed an answer alleging only that Lane had failed to exhaust his Maryland remedies because he had not attacked his convictions under the Maryland Uniform Post Conviction Procedure Act, Annotated Code of Maryland (1957), Art. 27, §§ 645A-J (Supp.1961). Without making a specific finding that Lane had exhausted his state remedies, the District Court dismissed the petition on the basis of Maryland decisions holding that the inclusion of prior convictions in the indictment, their submission to the jury, and specific findings by the jury of such prior convictions were necessary to support a verdict of guilty as a third offender. Since the State has not raised before us an issue of failure to exhaust state remedies, the point will be treated as abandoned, in accordance with this court's Rule 10, Paragraph 8. However, we note that Lane had exhausted his state remedies when the highest state court, on appeal, after considering the question on the merits, denied relief and subsequently the United States Supreme Court denied certiorari. See Brown v. Allen, 344 U.S. 443, 447-450, 73 S.Ct. 397, 97 L.Ed. 469 (1953).

Lane contends, as he did in the Maryland Court of Appeals, that by informing the jury of the details of his two prior convictions at the beginning of trial, the State deprived him of a fair hearing on the charges for which he was then on trial and thereby denied him due process of law guaranteed by the Fourteenth Amendment. The State, however, counters with the argument that the practice of including allegations of former convictions in indictments and reading them to the jury has been standard Maryland criminal practice since 1878; that the information concerning prior convictions is a necessary part of the indictment in order that it allege every fact essential to justify the punishment inflicted; and that the jury was bound to consider prior convictions before it could find a defendant guilty as a multiple offender. Numerous decisions of the Maryland Court of Appeals are cited in support of the State's argument, including especially Beard v. State, 216 Md. 302, 140 A.2d 672 (1958); and Maguire v. State, 47 Md. 485 (1878).

The basic problem not resolved by the argument of the State or the decisions of the Maryland Court of Appeals derives from the likely prejudice to an accused when the jury, before determining his guilt or innocence on the current charges for which he is on trial, is informed that he has been previously convicted of similar crimes. Recognition of the fact that prejudice arises under such circumstances has resulted in various efforts to protect the rights of those accused of crime. Several generally accepted rules of evidence are especially significant in this respect.

It is well established that evidence or allegations of prior crimes are inadmissible at a criminal trial either to establish guilt or to show that a defendant would be likely to commit the crime with which he is charged. Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948); Boyd v. United States, 142 U.S. 450, 12 S.Ct. 292, 35 L.Ed. 1077 (1892); Benton v. United States, 233 F.2d 491 (4th Cir., 1956); Lovely v. United States, 169 F.2d 386 (4th Cir., 1948); Dobbs v. State, 148 Md. 34, 129 A. 275 (1925); Weinstein v. State, 146 Md. 80, 125 A. 889 (1924). The rule and its rationale were explained and approved in Michelson v. United States, supra, where the Court said:

"Courts that follow the commonlaw tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant\'s evil character to establish a probability of his guilt. Not that the law invests the defendant with a presumption of good character, Greer v. United States, 245 U.S. 559 38 S.Ct. 209, 62 L.Ed. 469, but it simply closes the whole matter of character, disposition and reputation on the prosecution\'s case-in-chief. The state may not show defendant\'s prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so over persuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge. The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice." 335 U.S. at 475-476, 69 S.Ct. at 218.⁴

The Court continued in Michelson by indicating that a defendant can elect to initiate a character inquiry to persuade the jury that he would not be likely to commit the offense charged, but in so doing he throws open the entire subject and makes himself vulnerable where the law otherwise shields him. In such instances wide latitude is given the prosecution in using rebuttal character witnesses and in cross-examining defendant's witnesses to impeach their credibility.

An important exception to the general rule is that when the defendant voluntarily submits himself as witness, he may, for purposes of impeachment, be interrogated concerning prior convictions and, in case he denies such convictions, proof thereof may be presented. See United States v. Pennix, 313 F.2d 524 (4th Cir., 1963); Walker v. United States, 104 F.2d 465, 470 (4th Cir., 1939). It is clear that placing information of a defendant's prior convictions before the jury can have a strong prejudicial effect. The cases which are cited in the following discussion illustrate this point.

In Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959), where at a federal trial for unlawful dispensing of drugs the defendant neither took the stand nor offered any evidence and the trial judge specifically refused to allow the Government to prove that defendant had previously practiced medicine without a license on the ground that it would be irrelevant and prejudicial, newspaper information as to defendant's prior convictions for forgery and illegally prescribing drugs reached seven of the jurors. Even though the trial judge, prior to making a finding of no prejudice and denying a motion for a mistrial, privately interviewed each juror to learn what he had observed and received assurance from each he would not be influenced or prejudiced thereby, the Court found the exposure of the jurors to the newspaper articles so prejudicial in the setting of the case as to warrant the exercise of its supervisory power to order a new trial:

"* * * We have here the exposure of jurors to information of a character which the trial judge ruled was so prejudicial it could not be directly offered as evidence. The prejudice to the defendant is almost certain to be as great when that evidence reaches the jury through news accounts as when it is a part of the prosecution\'s evidence. Cf. Michelson v. United States, 335 U.S. 469, 475 69 S.Ct. 213, 93 L.Ed. 168. It may indeed be greater for it is then not tempered by protective

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