Presley v. State

• Decision Date: 26 March 1969
• Docket Number: No. 314,314
• Citation: 251 A.2d 622,6 Md.App. 419
• Parties: James Leslie PRESLEY v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 419

6 Md.App. 419

251 A.2d 622

James Leslie PRESLEY v. STATE of Maryland.

No. 314.

Court of Special Appeals of Maryland.

March 26, 1969.

G. Denmead LeViness and Thomas W. Jamison, III, Baltimore, for appellant.

Bernard L. Silbert, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., Peter D. Ward, and Howard L. Cardin, State's Atty., and Asst. State's Attys., for Baltimore City respectively and James A. Wise, State's Atty., for Caroline County on brief for appellee.

Before ANDERSON, MORTON, ORTH and THOMPSON, JJ.

MORTON, Judge.

The appellant, James Leslie Presley, was first convicted of rape upon an eleven-year-old girl by a jury in the Criminal Court of Baltimore and sentenced to death in April 1960. The judgment of conviction was affirmed by the Court of Appeals of Maryland in Presley v. State, 224 Md. 550, 168 A.2d 510. Thereafter, Presley was granted a new trial as a result of habeas corpus proceedings filed in the United States District Court for the District of Maryland. See Presley v. Pepersack, 228 F.Supp. 95 (D.C.1964). The second trial was conducted in the Circuit Court for Harford County and, again, Presley was found guilty of rape by a jury and this tiem sentenced to life imprisonment. While his appeal was pending, Schowgurow v. State, 240 Md. 121, 213 A.2d 475, was decided and on the basis of that decision he elected to seek and was granted a new trial which was held in the Circuit Court for Caroline County and, again, he was convicted by a jury of rape and sentenced to life imprisonment.

In this appeal from his third trial, Presley's appellate counsel complains that the trial judge's instructions to the jury concerning the penalty for the crime of rape were erroneous. Specifically, his complaint is directed to the following excerpt from the instructions:

'Under recent decisions of the Federal Court interpreting the Constitution of the United States, they have made some rulings which, when applied to the history of this case, would prohibit this Court from imposing the death penalty under this general law and under a general verdict of guilty in this case. We, therefore, say to the jury in an advisory instruction, here, on the law, it is our opinion that, if you find a general verdict of guilty without the condition, that is, without capital punishment annexed to it, the Court, then, will be called upon to exercise their discretion under this law of imprisonment for no less than 18 months nor more than 21 years or imposing a life sentence in the Court's discretion.

'Imprisonment up to 21 years or life imprisonment under a general verdict of guilty or under a verdict of guilty without capital punishment, the maximum imprisonment would be not more than 20 years.

'I mention these penalties because the jury is called upon, in the event of a finding of guilty, to decide, in their discretion, which of these forms of verdicts under a guilty finding, they determine to bring in. I say to you that it is the Court's opinion that in the light of these recent Federal decisions, when applied to the history of this case, we would not be permitted to impose the death penalty under a general verdict of guilty. The maximum would be as I have related, which of those two verdicts the jury brings in.'

At the time the instructions were given to the jury, Presley's trial counsel excepted to that part of the instructions which referred to 'recent decisions of the Federal Court' which 'when applied to the history of this case, would prohibit this Court from imposing the death penalty.' ¹

It is argued that once the trial judge informs the jury that he is precluded, for whatever reason, from imposing the death penalty, the jury, as a practical matter, would tend to ignore the authority given by Md. Code, Art. 27, § 463 ² to bring in a verdict of guilty, without capital punishment, which would preclude the trial judge from imposing a sentence greater than twenty years. In other words, when the jury is advised that the judge is legally prohibited from imposing the death sentence, the jury might conclude that it is unnecessary to add as a condition to the verdict the limitation 'without capital punishment'; that it would simply bring in a general verdict of guilty and thus enable the judge, in his discretion, to impose a life sentence rather than limiting his sentence to one of not less than eighteen months or more than twenty years. We are of the opinion that this is a fallacious assumption.

An examination of the instructions in their entirety reveals that the judge made it clear to the jury that his instructions were purely advisory. He asserted:

'In a criminal case, the jury is the sole and final judges of the law as well as the facts. So, what the Court says to you, therefore, in regard to the law is advisory only, and is not binding upon you. You are at liberty to exercise your judgment as to what the law is, notwithstanding, the Court's advice.'

Moreover, the trial judge made it abundantly clear that it was the duty of the jury, alone, to determine what verdict to return. He explained to them as follows:

'In this event, which one of those three verdicts the jury brings in, that is, not guilty, guilty without capital punishment, guilty as (sic) a matter for the jury to determine and decide after a full and conscientious consideration of the evidence and the application to those true facts as you find them to be under the evidence and the application of the law of this State to those true facts.'

As stated in Jones v. State, 182 Md. 653 at p. 661, 35 A.2d 916 at p. 920: 'It is almost the universal custom in this State for the trial court in a murder (or rape) case to instruct the jury as to the forms of verdict which they can render. * * * We are of the opinion that if the trial judge sees fit to instruct as to the penalty for some of the verdicts which the jury may render, information should be given as to the penalty for all of the verdicts.' See also Shoemaker v. State, 228 Md. 462, 180 A.2d 682, where the Court of Appeals found no error in an instruction by the trial judge relating to the possible penalty in a rape case-a minimum of eighteen months and a maximum of twenty years-in case of a verdict of guilty without capital punishment. In the case at bar, the trial judge followed the usual practice and instructed the jury both as to the possible forms of their verdicts and the penalties that could be imposed in connection with each form of verdict. He made it clear to the jury that the responsibility for the form of the verdict was theirs alone and we do not think that his reference to the court's lack of authority to impose the death sentence was intended to, or in fact did, influence the jury in reaching the verdict that was returned.

The contention here is not unlike that in Reeves v. State, 3 Md.App. 195, 201, 238 A.2d 307, 311, where the accused was found guilty of rape and on appeal contended that it was error for the trial judge to instruct the jury that it had 'a certain prerogative not normally enjoyed by a criminal jury,' indicating that it could prevent the imposition of the death sentence by conditioning its verdict with the words 'without capital punishment.' It was argued that 'thinking it had control over punishment, the jury was more likely to bring in the compromise verdict of guilty, without capital punishment, and that the defendant's chances for acquittal were gravely prejudiced.' This Court found the contention to be meritless since 'the trial judge included in his instructions a clear admonition that 'the imposition of sentence is purely within the province of the trial judge." In the case at bar, the trial judge likewise made it clear in the course of his instructions that 'the jury has no connection with the matter of sentencing' and that its 'whole function is to determine the guilt of the accused or the innocence of the accused.'

We have carefully read the instructions given by the trial judge below and we are of the opinion that they were not misleading or confusing (cf. Midgett v. State, 216 Md. 26, 139 A.2d 209 and Shoemaker v. State, supra.) and did not prejudicially influence the jury's verdict to the detriment of the appellant.

In addition to the contention raised by Presley's appellate counsel which we have just discussed, Presley submitted, pro se, in a handwritten brief consisting of 112 pages, some forty-four questions which he seeks to have this Court answer, and he further urges this Court to conduct an evidentiary hearing in order to ascertain the answers to an additional thirty-five questions that he has posed. With respect to the appellant's latter request, there is no provision in the statutory authority of this Court or in the Maryland Rules which would permit the Court to conduct an evidentiary hearing of the type sought by the appellant. Moreover, the Maryland Rules specifically provide that 'an appeal to this Court shall be heard on the original papers' and 'the term 'original papers' includes exhibits and the transcript of the testimony' given at the trial below. Md. Rule 1026 b. In addition, the scope of review by this Court is ordinarily limited to questions decided by the lower court. Md.Rule 1085. Accordingly, the appellant's request for an evidentiary hearing is denied.

A number of the forty-four questions raised by the appellant relate to the same general contention and, rather than set forth the questions seriatim and verbatim, we shall confine our discussion to the appropriate categories in which the questions appear to fall.

I

A number of Presley's questions are directed toward the contention that the in-court identification of him by the prosecuting witness was the fruit of an illegal police lineup and the result of slides which included pictures of him. The record reveals that all testimony relating to Presley's in-court and out of court identifications by the prosecuting witness came in...