Rice v. Warden, Maryland State Penitentiary

• Decision Date: 14 December 1964
• Docket Number: Civ. A. No. 11108.
• Citation: 237 F. Supp. 463
• Parties: Phillip Raymond RICE v. WARDEN, MARYLAND STATE PENITENTIARY.
• Court: U.S. District Court — District of Maryland

237 F. Supp. 463

Phillip Raymond RICE v. WARDEN, MARYLAND STATE PENITENTIARY.

Civ. A. No. 11108.

United States District Court D. Maryland.

December 14, 1964.

Lawrence F. Rodowsky, Baltimore, Md. (court appointed), for petitioner.

Thomas B. Finan, Atty. Gen., and Fred Oken, Asst. Atty. Gen. of Maryland, for respondent.

R. DORSEY WATKINS, District Judge.

Petitioner, a Maryland state prisoner, seeks in this court for the fourth time the issuance of a writ of habeas corpus. Rice was charged as an accessory before and after the fact in four cases of armed robbery. He was also indicted as an accessory to assault with intent to murder. Represented by court appointed counsel he pled not guilty to all of the offenses with which he was charged and prayed a court trial. The State elected to proceed first on three of the indictments charging petitioner as an accessory to armed robbery and petitioner went to trial in the Criminal Court of Baltimore on December 14, 1956. He was convicted on the three indictments and was sentenced to twenty (20) years in the Maryland Penitentiary in each case, the sentences to run consecutively. The State entered a stet in each of the two additional indictments.

Petitioner did not appeal his conviction directly to the Court of Appeals of Maryland. He did, however, shortly after his conviction, seek a writ of habeas corpus in the state courts, challenging the legality of his detention on numerous grounds. His petition was denied by the lower court and leave to appeal from that adverse decision was denied by the Court of Appeals of Maryland. (Rice v. Warden, 1957, 214 Md. 613, 135 A.2d 622). Certiorari was denied by the Supreme Court of the United States, 1955, 355 U.S. 966, 78 S.Ct. 557, 2 L.Ed.2d 541. Thereafter, petitioner filed an application for relief under the Uniform Post Conviction Procedure Act, Article 27, section 645A et seq., Annotated Code of Public General Laws of Maryland. This petition was denied by the lower court and was followed by a denial by the Court of Appeals of Maryland of leave to appeal. (Rice v. Warden, 1959, 221 Md. 604, 156 A.2d 632). In addition to the petitions filed in the state courts, Rice has filed in this court three previous petitions seeking federal habeas corpus relief, all three of which were denied by Chief Judge Roszel C. Thomsen. Subsequent to Judge Thomsen's last denial of relief, a series of opinions by the Supreme Court of the United States led Judge Thomsen to conclude that petitioner's notice of appeal should be treated as a petition for rehearing, that denial of relief should be stricken, that counsel to represent the petitioner should be appointed and that the petition should be set down for a hearing at a future date.

The hearing was had in open court before the undersigned judge. Counsel for the petitioner and counsel for the respondent stipulated that the records of all prior proceedings involving the petitioner, including the transcript of the testimony and the exhibits at his original trial, be made a part of the record in the instant case. Petitioner took the stand at the habeas corpus hearing and testified in his own behalf. Police Lieutenants Cooper and Butler testified for the respondent. After hearing all the testimony, the court ruled against the petitioner on the facts as to four of the five grounds asserted by him as a basis for relief. While permitting the filing of memoranda on these points, the court specifically requested briefs on the fifth point raised, that certain evidence admitted at the time of petitioner's original criminal trial had been obtained as the result of an illegal search and seizure.

The facts surrounding the alleged illegal search and seizure are not in dispute. On September 2, 1956 Donald Lee Dobson was released from the Maryland House of Correction, having served a three and one-half year sentence. He contacted petitioner Rice who was living, together with his girl friend Dolores Price and one William Dorsey, in the first floor apartment of a three-story building at 1206 Laurens Street, Baltimore, Maryland. The second and third floors were occupied by other persons not herein involved. Arrangements were made between Rice and Dobson whereby the latter for $5.00 a week rent would use the front room. Dorsey slept in the middle room and the petitioner and Dolores Price occupied the remaining bedroom. Dobson had his own key and was permitted full use of, and access to, the entire apartment.

Beginning in September and continuing through October of 1956, Dobson and James Percy Hall committed a series of holdups of taverns and liquor stores. Their illegal activities ended with the holdup of the Elgin Tavern on North Monroe Street on the morning of Friday, October 26, 1956. Characteristic of these robberies was the terrorization of the holdup victims by the use of shotgun, rifle and pistols. Dobson was picked up by the police on Saturday the 27th of October. He immediately implicated Rice and on the early morning of the following day, Sunday, October 28, 1956, at about 2 A.M. Lieutenant, then Sergeant, Butler, acting on the basis of the information received from Dobson, went to the apartment at Laurens Street to arrest Rice. Finding no one at home, Lieutenant Butler left.

Petitioner was arrested several hours later, at about 4 A.M., on Pennsylvania Avenue at a point about twelve blocks from his home. He was taken to the Central Police Station where during an interrogation of thirty to forty-five minutes petitioner informed the police that various guns belonging to Dobson were located in the apartment. He specified the particular place where each weapon could be found, indicating that a shotgun was in the bedroom in a hamper under dirty clothes and that a pistol was in the bedroom in a cabinet. The police immediately proceeded to the Laurens Street apartment. They found the weapons where they had been told to look. Subsequently, at the time of Rice's trial the pistol and some ammunition were admitted into evidence; the shotgun was not.

On Monday morning, October 29, 1956, petitioner was taken by the police from his place of detention at the Central Police Station to the Laurens Street apartment. There in the kitchen, under a washing machine, the police found a bag containing a gray striped coat and a pair of khaki army pants. Victims identified the coat as Dobson's and the pants as Hall's. These items of clothing were introduced into evidence at the time of the trial.

The trial which resulted in the petitioner's conviction was not his trial alone. Dobson and Hall had been jointly indicted as principals in seven cases of armed robbery. Rice had been indicted separately as an accessory in four of these cases.¹ Dobson, Hall and Rice were arraigned on the same day. Dobson pled guilty to all charges against him; Hall and Rice, not guilty. The State then elected to proceed against Hall on the three indictments charging Dobson and Hall as principals in the armed robbery of the Elgin Tavern. Rice agreed in open court to be tried with Hall on the indictments against him as an accessory to the same holdup "at the same time and on the same set of facts" (Transcript of original criminal trial, page 11; emphasis supplied). The three indictments against Hall were then consolidated with the three indictments against Rice and the consolidated cases proceeded to trial. Assuming for the moment, without deciding, that there had been an illegal search and seizure, Dobson precluded any objection by himself on such grounds by his guilty plea. Hall had no standing to object as to the search for, or seizure of, the guns, the shells and the gray coat, having neither owned nor possessed the seized property and having no possessory interest in the premises searched. Rice, separately indicted from Hall and Dobson, had the right to resist any attempt to try him jointly with Hall. He voluntarily agreed to a joint trial. Even in a joint trial he would have had the right to an instruction limiting only to the defendant against whom it was admissible, the effect of any evidence introduced. He waived this right when he knowingly agreed to a trial with Hall "at the same time and on the same set of facts"² (emphasis supplied). The court finds a waiver by Rice of his right to object to evidence admissible against Hall, said waiver arising out of not a mere failure to object to the admission of the fruits of an alleged illegal search and a failure to raise the question on appeal when such tactics would have been futile under the law as it then stood,³ but rather arising out of an affirmative, positive choice on petitioner's part to be tried jointly with Hall and "on the same set of facts."

Nevertheless, the court will still examine and rule on the question of the legality of the search.

Since in the instant case the officers did not obtain a search warrant and since the search was not made incident to Rice's arrest, the search, to have been lawful, must have been made with Rice's consent. There is no contention that Rice expressly consented to a search. Consent, if it exists, must be implied from all of the surrounding circumstances. The leading case in this circuit on the question of implied consent to which this court looks in determining whether or not Rice gave his consent to the search and seizure, which he now seeks to challenge, is Hall v. Warden, Maryland Penitentiary, 4 Cir.1963, 313 F.2d 483, where three judges of the United States Court of Appeals for the Fourth Circuit, the court sitting en banc, did not find sufficient evidence of a consent; Chief Judge Clement F. Haynsworth, Jr., then Circuit Judge, dissenting on the ground that substantial evidence supported the District Court's finding of consent and Circuit Judge Albert v. Bryan dissenting on the ground that the evidence clearly established a consent to the search. The majority opinion in Hall summarized the evidence relied upon to show consent as follows:

"Merely

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