McCoy v. Warden, Md. Penitentiary

• Decision Date: 20 March 1967
• Docket Number: No. 30,30
• Citation: 227 A.2d 375,1 Md.App. 108
• Parties: Glendon E. McCOY v. WARDEN, MARYLAND PENITENTIARY. Post Conviction
• Court: Court of Special Appeals of Maryland

Page 108

1 Md.App. 108

227 A.2d 375

Glendon E. McCOY v. WARDEN, MARYLAND PENITENTIARY.

Post Conviction No. 30.

Court of Special Appeals of Maryland.

March 20, 1967.

Before MORTON, ORTH and THOMPSON, JJ., and DYER, HARRY E., Jr., Judge (Specially Assigned).

ORTH, Judge.

The applicant for leave to appeal was convicted of assault with intent to rape on December 15, 1952, by a jury sitting in the Circuit Court for Montgomery County, Judge Stedman Prescott, presiding, and sentenced to twenty years in the Maryland Penitentiary. A motion for a new trial was denied on January 9, 1953. On April 13, 1966, applicant filed a thirteen page petition for review under the Uniform Post Conviction Procedure Act in which he presents twenty contentions, in substance as follows:

1) He was arrested without a warrant.

2) He was interrogated for twelve to fifteen hours without being advised of his constitutional rights and without benefit of counsel.

3) There was an illegal search and seizure of his clothing.

4) He was subjected to physical and mental abuse during his interrogation, given promises and threatened.

5) He was illegally imprisoned before trial.

6) He was held incommunicado prior to the preliminary hearing despite his wife's repeated efforts to see him.

7) He had no counsel at the preliminary hearing at which he entered a plea of 'not guilty'.

8) He was not confronted by witnesses at the preliminary hearing.

9) He had no counsel at arraignment.

10) There was no confrontation at arraignment.

11) He was in jail for five months before trial.

12) Counsel was appointed for him too close to trial date for adequate preparation.

13) Statements made by him at the interrogation were used against him at the trial but they 'were in no way an admission of guilt nor in any sense a confession but were twisted to suit the State's purposes and were used'.

14) There was 'false and doctored' evidence introduced to the jury.

15) The State withheld evidence favorable to him.

16) There was false and contradictory testimony of State's witnesses.

17) There was deliberate flaunting of court orders by the prosecution concerning witnesses and lack of effort on the part of the trial judge to enforce this order.

18) There was deliberate intimidation of his counsel by the State and detectives.

19) There were irregularities in the choosing of the jury. All women were omitted.

20) His counsel was incompetent.

With respect to contentions 4, 14, 15, 17, 18, 19 and 20, applicant stated that he reserved the right, until actually in open court, to state the facts with respect thereto despite Rule BK 41 a and b. Contrary to Rule BK 41 c, numerous citations and extensive argument are set forth in support of the petition.

On April 21, 1966, the Court appointed counsel to represent applicant. The record discloses that three witnesses were summoned by the State and six witnesses were summoned by the applicant. The record does not disclose a request by applicant for a transcript of the proceedings at the original trial.

Judge Shure accompanied the order denying relief by a memorandum in which he stated that at the hearing applicant was interrogated by his counsel on each of the twenty contentions.

With regard to the first, third and fifth contentions, the crime of assault with intent to rape is a felony and Judge Shure found clearly reasonable grounds for the arrest. (Code, Art. 27, sec. 12). Therefore, the contention of illegal search and seizure is without significance. Further, nothing obtained by the search and seizure was offered in evidence against him.

With regard to the second, fourth and ninth contentions, as to lack of counsel, applicant was convicted in 1952. The Court of Appeals of Maryland held that the rule in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), would not be applied retroactively. (Brewster v. Warden, 243 Md. 688, 221 A.2d 83 (1966); Hyde v. State, 240 Md. 661, 215 A.2d 145 (1965); see also Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (U.S. June 20, 1966). As to the police interrogation, Judge Shure found no credible evidence whatsoever of any improper interrogation, the contentions being categorically denied by the police officers.

With regard to the sixth contention, refusal to allow applicant's wife to see him, standing alone, is no ground for post conviction relief.

With regard to the seventh and eighth contentions, Judge Shure found as a fact that applicant's two counsel were present at the preliminary hearing. Further, a preliminary hearing relates only to the legality of an accused in detention before his indictment and is not a necessary proceeding in obtaining a valid conviction. (Ferrell v. Warden, 241 Md. 432, 216 A.2d 740 (1966)).

With regard to the ninth and tenth contentions, applicant pleaded 'not guilty' at his arraignment and absence of counsel and lack of confrontation are not grounds for post conviction relief. (DeVaughn v. Warden, 241 Md. 411, 216 A.2d 748 (1966)).

The eleventh contention is a bald allegation. There is nothing in the record to show that the matter was raised at the original trial, that any effort was made for an earlier trial, or that applicant was in any way prejudiced.

With regard to the twelfth, eighteenth, nineteenth and twentieth contentions, all directed toward alleged incompetency of counsel, Judge Shure found that the lower court appointed two respected members of the bar to represent applicant, one a leading criminal lawyer at that time, and the other now considered a leading criminal lawyer, and that there was no testimony, nor does anything appear of record at any stage of the proceedings to indicate to any degree a lack of completely adequate representation. An extract from a letter dated February 28, 1953, from applicant to Robert C. Heeney, Esquire, one of applicant's counsel was read into evidence at the post conviction hearing, transcript, page 20,

"If I had received the death penalty it most truthfully would not have been your fault. If I'd had a million dollars that day, on December 15, 1952, I would have given you every cent, because you sure earned it. I say that in all sincerity. You did everything you possibly could at that time. Never once have I ever said anything but compliments about you for your devotion of time and energy preparing for that trial.'

The thirteenth contention presents no ground for post conviction relief. Applicant states that the statements he made were not any admission of guilt nor in any sense a confession.

Contentions fourteen and sixteen pertain to the evidence, that it was false and contradictory. There is no showing what the false testimony was or that the State knowingly participated in the use of the alleged perjured testimony. (Meadows v. Warden, 232 Md. 635, 192 A.2d 758). Bald assertions unsupported by specific allegation do not constitute a ground for post conviction relief and this court cannot assume a bald unsupported allegation in the petition to be true. (Hornes v. Warden, 235 Md. 673, 202 A.2d 643 (1964); Brown v. Warden, 221 Md. 582, 155 A.2d 648).

The fifteenth contention is that the State withheld evidence favorable to the applicant. In his petition with regard to this contention, applicant states that 'he reserves the right until actually in open court on the hearing * * * to state the facts backing up this allegation.' The record indicates it concerned laboratory tests of clothing. The record indicates a pair of shorts of the victim were proffered and that an F.B.I. Agent testified that they contained seminal stains (hearing transcript Page 10). So this contention apparently concerns laboratory tests of clothing of the applicant performed by a private laboratory hired by the family of the applicant. Mr. Heeney stated, transcript of hearing, pages 14-15, that the tests were not made until after the applicant had been convicted. Therefore, they could not be evidence suppressed by the State.

There is some indication that another laboratory test was not used at the trial because it found nothing.

It is clear that the suppression or withholding by the State of material evidence exculpatory to an accused is a violation of due process and is ground for relief under the Uniform Post Conviction Procedure Act. Such evidence must be material and capable of clearing or tending to clear the accused of guilt or of substantially affecting the punishment to be imposed in addition to being such as could reasonably be considered admissable and useful to the defense. State v. Giles, 239 Md. 458, 212 A.2d 101; cert. granted, 383 U.S. 941, 86 S.Ct. 1194, 16 L.Ed.2d 205; Giles v. State, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737, decided February 20, 1967.

In Hyde v. Warden, 235 Md. 641, 202 A.2d 382, there was a contention that clothes taken from the defendant were not introduced into evidence. He had been washing them just before his arrest and no blood stains were found when they were tested.

The Court said, page 645, 202 A.2d page 384,

'Such evidence does not seem material. In any event, in view of Hyde's knowledge of these articles, this contention is not supportable.'

Appellant, of course, had knowledge of the clothing and could have proffered them if he thought them material.

The record does not disclose a suppression of evidence amounting to a denial of due process.

The seventeenth contention is without merit. The bald allegation to the effect that the trial judge assisted the prosecution is insufficient to form any basis for relief. (Duff v. Warden, 234 Md. 646, 200 A.2d 78 (1964)).

With further regard to the nineteenth contention, Judge Shure found no irregularities in the jury selection. Applicant was represented by counsel, there was a full jury panel available, the twenty challenges to which applicant was entitled were exercised carefully so that an all male jury was selected. Even if this was an error in trial tactics, and it does not so...