Nash v. State of Maryland

• Decision Date: 28 December 1973
• Docket Number: Civ. No. 73-141-K.
• Citation: 371 F. Supp. 801
• Parties: Elester Howard NASH, Jr. 122142 v. STATE OF MARYLAND.
• Court: U.S. District Court — District of Maryland

371 F. Supp. 801

Elester Howard NASH, Jr. 122142 v. STATE OF MARYLAND.

Civ. No. 73-141-K.

United States District Court, D. Maryland.

December 28, 1973.

Elester Howard Nash, Jr., pro se.

Francis B. Burch, Atty. Gen. of Maryland, John P. Stafford, Jr., Alexander L. Cummings, Asst. Attys. Gen. of Md., for respondent.

MEMORANDUM AND ORDER

FRANK A. KAUFMAN, District Judge.

Nash, presently confined in the Maryland House of Correction, was convicted of four charges of uttering counterfeit checks after a non-jury trial on August 7 and 8, 1972 in the Circuit Court for Dorchester County before Judge C. Burnam Mace. Judge Mace sentenced Nash to serve six years for each of the four offenses, the four six-year sentences to run concurrently. Nash appealed to the Court of Special Appeals of Maryland, during the pendency of which appeal he also filed a habeas corpus petition in this Court. That petition was denied by this Court without prejudice because Nash had failed to exhaust his available state remedies.

After the Court of Special Appeals of Maryland affirmed Nash's conviction, Nash unsuccessfully sought certiorari review in the Court of Appeals of Maryland. That quest was denied. Thereafter Nash filed the within, that is, his second habeas corpus petition in this Court, in which he contends:

(1) The State of Maryland failed to establish his guilt beyond a reasonable doubt; and the Court erred in supplying by conjecture an evidentiary fact essential to his conviction.

(2) The prosecution failed to introduce into evidence an FBI report favorable to him.

(3) After the forgeries had been discovered, the police showed the victims a set of photographs of known "bad check artists"; those victims identified Nash as "`being closest to the person who cashed the checks'"; and the police then arrested Nash and placed him in a line-up in which he was identified by one eyewitness as the man who had caused her to cash a bad check. Construing his allegations most broadly, Nash may be claiming that the witness did not identify him as the man whose picture was shown to her prior to his arrest; or that his identification at the line-up was tainted by his pre-arrest photographic identification; or that his identification at trial was tainted by the earlier photographic identification and/or line-up identification.

The Court of Special Appeals of Maryland (at p. 1 of its opinion affirming Nash's conviction, No. 597 (May 23, 1973) (unreported)) wrote, inter alia:

On March 4, 1972, a series of bad checks were passed on retail merchants in the city of Cambridge. All of the checks turned out to be forged payroll checks of the James Construction Company. All were made in the amount of $96.41 to the order of Michael L. Simms, ostensibly on March 3, 1972. The date, the amount of the check, and the name of the payee were all typewritten. The checks were all ostensibly endorsed by Michael L. Simms.

Through the Maryland State Police, the Cambridge Police Department obtained photographs of a number of known bad check passers. The four victims in the four cases at bar were each shown eight photographs. Each identified a photograph of the appellant as the person most closely resembling the utterer of the respective fraudulent checks. The appellant was arrested in Baltimore and brought to Cambridge for a lineup, which was held on April 17, 1972. One of the victims, Judy Bramble, an employee of Sears, Roebuck & Company, picked the appellant out of the lineup. * * *

Four witnesses identified Nash during his trial as the person, posing as Michael L. Simms, who passed off forged checks on retail merchants. Miss Bramble recalled that on March 4, 1972 she cashed a check drawn on the James Construction Company in the amount of $96.41 for a man who identified himself as Michael L. Simms. She testified that she observed Simms for a total of ten minutes; six minutes while she was cashing the check and four minutes while she watched his movements in the store from a balcony. She positively identified Nash as the man who cashed the check. (Trial Transcript pp. 37-49).

Mrs. Audrey Willey, the manager of a Woolworth's Department Store, testified that on March 4, 1972 she cashed a check in the amount of $96.41 drawn on the James Construction Company for a man purporting to be Michael L. Simms. She stated that while cashing the check she "was looking him right in the face" for a period of from four to five minutes. (Trial Transcript pp. 61-62). She also made a positive identification of Nash as Michael L. Simms (Trial Transcript pp. 55-62).

Mrs. Mary Lou Jackson, the manager of a Quik Shop in Cambridge identified Nash as the man who, on March 4, 1972, while using the name of Michael L. Simms, cashed a check on the James Construction Company in the amount of $96.41. Mrs. Jackson testified that she watched Simms for a full ten minutes while he was in her store. (Trial Transcript pp. 69-80).

Mr. Gene Stack, the supervisor of a Montgomery Ward store in Cambridge stated that on March 4, 1972, Nash, using the name Michael Simms, had purchased a can opener in that store with a check identical to those cashed by Miss Bramble, Mrs. Willey and Mrs. Jackson (Trial Transcript pp. 113-15; see also pp. 12, 13 and 16).

Nash attempted to refute the above-summarized evidence with a flat denial of his guilt (Trial Transcript pp. 181-83); with the testimony of a handwriting expert who stated her opinion that Nash's handwriting was dissimilar to the endorsements on the checks (Trial Transcript pp. 139, 154); and with six alibi witnesses who placed him in Baltimore City throughout the entire day of March 4, 1972 (Trial Transcript pp. 194 et seq.). Judge Mace, as the trier of fact, specifically stated his acceptance of the testimony of the State's witnesses, his rejection of the alibi testimony and his conviction "beyond a reasonable doubt of the guilt of the Defendant in this case" (Trial Transcript pp. 235-36).

Nash was convicted of uttering a forgery and not of forgery itself. Judge Mace found beyond a reasonable doubt that the instruments were false, that they were uttered by Nash as true, that Nash knew them to be false and that he intended to defraud those who cashed the checks (Trial Transcript pp. 233-36). Specifically, Judge Mace stated:

Now, the question of when, where or by whom these endorsements on the checks or the signatures on any part of them were forged, I don't think need be proven in a charge of uttering. * * * Trial Transcript p. 234.

On appeal, the Court of Special Appeals of Maryland wrote (at pp. 2-3):

There can be no question but that the evidence showed directly facts from which the trial judge, sitting as the fact finder, could fairly be convinced, beyond a reasonable doubt, of the appellant's guilt. * * *

In the light of that record, Nash cannot succeed in this case in establishing lack of sufficient evidence as a ground for habeas corpus relief. In a federal habeas corpus setting far less evidence than was present in this case will satisfy constitutional requirements. Grundler v. State, 283 F.2d 798, 801 (4th Cir.), cert. denied, 362 U.S. 917, 80 S.Ct. 670, 4 L.Ed.2d 738 (1960).

Nash's allegation that the prosecution failed to introduce into evidence an FBI report favorable to him in violation of the commands of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), is raised by him in this case in this Court for the first time. Accordingly, Nash has failed to exhaust his state remedies in connection with that contention. Thus, this Court could refuse to entertain that contention unless and until Nash shall have presented it in the state courts. 28 U.S.C. § 2254; Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); Ganger v. Peyton, 379 F.2d 709 (4th Cir. 1967). The principle of exhaustion of state remedies, however, is a matter of comity rather than jurisdiction. Picard v. Connor, supra, 404 U.S. at 275, 92 S.Ct. 509; Wright v. Maryland Penitentiary, 429 F.2d 1101 (4th Cir. 1970). Thus, exhaustion is not a necessary antecedent to this Court's power to dismiss a patently frivolous claim such as Nash has stated. Jenkins v. Fitzberger, 440 F.2d 1188 (4th Cir. 1971).

Brady, supra and its progeny forbid the Government from suppressing exculpatory evidence.

The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Brady, supra, 373 U.S. at 87, 83 S.Ct. at 1197. See Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972).

The prosecution, however, is not required to introduce evidence that is equally available to the defense. The record in this case discloses that Nash's defense counsel was aware of the FBI report and that he alerted Judge Mace to the gist of its content:

MR. FARNELL: Now, Your Honor, we have exhausted—well, there is one more thing I want to put in evidence and that is the record of the Federal Bureau of Investigation. I was going to ask to introduce the FBI —proffer what it says. We don't have a jury. That the checks which are in evidence have eight latent fingerprints and none of them belong to Mr. Nash. Trial Transcript p. 185.

Thus, Nash's "Brady-type" allegation is patently devoid of merit and is hereby rejected.

There remains Nash's contentions relating to identification. The Court of Special Appeals of Maryland noted (at p. 1) that Nash "does not challenge the propriety either of the lineup or of the photographic viewings". However, testimony at the trial, and colloquy among Court and counsel during trial (see, e. g., Trial Transcript pp. 13, 18, 20, 24-25, 26-29, 31-37, 52-53, 55, 74-76, 113) amply support Judge Mace's statements (Trial Transcript pp. 233-34) that—

* * * I am very much impressed with their the four eyewitnesses' testimony. They had ample opportunity to observe the Defendant. They

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