Robertson v. WARDEN, MD. PENITENTIARY, COLLINS

• Decision Date: 22 February 1979
• Docket Number: Civ. No. Y-78-1544.
• Citation: 466 F. Supp. 262
• Parties: Robert Ray ROBERTSON v. WARDEN, MARYLAND PENITENTIARY, COLLINS.
• Court: U.S. District Court — District of Maryland

466 F. Supp. 262

Robert Ray ROBERTSON v. WARDEN, MARYLAND PENITENTIARY, COLLINS.

Civ. No. Y-78-1544.

United States District Court, D. Maryland.

February 22, 1979.

Robert Ray Robertson, pro se.

Alice G. Pinderhughes, Asst. Atty. Gen., Baltimore, Md., for defendant.

MEMORANDUM AND ORDER

JOSEPH H. YOUNG, District Judge.

Petitioner, Robert Ray Robertson, was convicted of first degree murder in the Criminal Court of Baltimore on April 21, 1971 and sentenced to death. The transcript of petitioner's trial indicates that he was arrested and subsequently convicted of the murder of Charles Redd who was found by a police officer lying in an alley with two bullet wounds in the head on July 5, 1970. The apparent motive for the murder was to prevent Redd from testifying against petitioner's friend, Hercules Williams, who had a murder charge pending against him. On December 4, 1972, the Court of Appeals vacated his death sentence, and he began serving a life sentence in the custody of the Division of Correction on December 28, 1972. Five months later, Governor Marvin Mandel commuted petitioner's life sentence to a term of sixty years. In an unreported per curiam opinion, Robertson v. State, No. 803, September Term, 1972, filed on August 22, 1973, the judgment of the Criminal Court of Baltimore was affirmed by the Court of Special Appeals.

Petitioner commenced a collateral attack on his conviction by filing a petition under the Maryland Uniform Post Conviction Procedure Act on November 9, 1977 in which he claimed that the trial judge delivered an erroneous alibi instruction to the jury. The effect of this instruction was to shift to him an improper burden of proof at the trial. Judge Hargrove in the Criminal Court of Baltimore denied the petition on April 20, 1978. In an unreported per curiam opinion filed on June 29, 1978, the Maryland Court of Special Appeals also denied petitioner relief, holding that his failure to raise the issue of improper burden of proof on direct appeal constituted a waiver of the issue. Petitioner then filed the present petition for a writ of habeas corpus with this Court, alleging that the improper alibi instruction placed him under an undue burden at trial so as to deny him equal protection of the law.

The alibi instruction to which petitioner now objects reads as follows:

In connection with the alibi—that is to say, evidence that Mr. Robertson was somewhere else other than in the 1300 block of Webb Street on the evening of July 5th, 1970—the defendant has the burden of proof establishing that alibi by a preponderance of evidence; that is, by evidence persuading you that it is more probably true than not true.

Although the State has the burden of proving beyond a reasonable doubt his guilt in the case, he has the burden of persuading you by a preponderance of the evidence that he was somewhere else other than the 1300 block of Webb Street at the time described in the evidence.

Trial Transcript at 1950. Neither petitioner nor his counsel objected to this instruction at trial or in the subsequent appeal. The specific issue raised by petitioner's attempt to secure habeas corpus relief now is whether the Court of Special Appeals erred in denying him relief on the grounds that he did not raise the "alibi" issue until 1977 and therefore waived it. As the State poses the issue, the ultimate question is whether an erroneous jury instruction in 1971 can be the basis for relief seven years later?

One of the seminal features of American jurisprudence is that a criminal defendant is presumed innocent until proven guilty, with the burden of proof resting squarely on the shoulders of the prosecution:

Where one party has at stake an interest of transcending value—as a criminal defendant his liberty—the margin of error is reduced as to him by the process of placing on the prosecution the burden . . . of persuading the factfinder at the conclusion of the trial . . ..

Speiser v. Randall, 357 U.S. 513, 525-26, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958). Although an alibi defense is certainly not an affirmative defense, State v. Grady, 276 Md. 178, 345 A.2d 436 (1975), once raised, such a defense may make more difficult the prosecution's overall burden of persuasion. On the other hand, by raising an alibi defense, a defendant simply presents evidence in connection with his general defense and does not assume an added burden of having to prove the critical fact in dispute.

Petitioner challenges an alibi instruction which, although frequently used at the time of his trial, has since been rejected by both state and federal courts. The initial trend which eventually led to a rejection on constitutional due process grounds of the alibi instruction used in petitioner's case began before petitioner's trial. In In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), the Supreme Court held that under the Fourteenth Amendment's due process clause, a state criminal defendant was protected against conviction without proof beyond a reasonable doubt of every element of the crime for which he is charged. In Winship, the specific matter before the Court was "whether proof beyond a reasonable doubt was among the `essentials of due process and fair treatment' required during the adjudicatory stage when a juvenile is charged with an act which would constitute a crime if committed by an adult." Id. at 359, 90 S.Ct. at 1070. Given Winship's limited holding, its significance as applied to an erroneous alibi instruction was not immediately apparent, especially to a criminal defendant.

The Supreme Court's ruling in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), which came after petitioner's trial and his appeal, extended the Winship rationale by interpreting the Fourteenth Amendment's due process clause as requiring the "prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case." 421 U.S. at 704, 95 S.Ct. at 1892. The impact of Mullaney, then, was applicable to any defense theory of justification, excuse or mitigation, and effectively prevented the shifting of the burden of persuasion from the prosecution to the defense. See State v. Evans, 278 Md. 197, 207, 362 A.2d 629, 635 (1976). Winship had been made fully retroactive by Ivan V. v. City of New York, 407 U.S. 203, 92 S.Ct. 1951, 32 L.Ed.2d 659 (1973), and on this authority, the Maryland Court of Special Appeals held that Mullaney was to be given fully retroactive effect. Evans v. State, 28 Md.App. 640, 349 A.2d 300 (1975), aff'd, State v. Evans, supra. The Supreme Court has likewise held Mullaney fully retroactive in Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977), emphasizing the importance of its holding to enhancing the fact-finding process.

In presenting his claims for habeas relief, petitioner invokes article 27, § 645A(d) of the Maryland Annotated Code, which reads as follows:

(d) Decision that Constitution imposes standard not theretofore recognized.

For the purposes of this subtitle and notwithstanding any other provision hereof, no allegation of error shall be deemed to have been finally litigated or waived where, subsequent to any decision upon the merits thereof or subsequent to any proceeding in which said allegation otherwise may have been waived, any court whose decisions are binding upon the lower courts of this State holds that the Constitution of the United States or of Maryland imposes upon State criminal proceedings a procedural or substantive standard not theretofore recognized, which such standard is intended to be applied retrospectively and would thereby affect the validity of the petitioner's conviction or sentence.

While premising his relief upon the waiver standard of § 645A(d), petitioner relies upon the ruling in State v. Grady, 276 Md. 178, 345 A.2d 436 (1975), which he argues has retroactive effect. In Grady, the Court of Appeals specifically considered an erroneous alibi instruction and held that:

In sum, under the Federal Constitution, as well as the law of Maryland, the burden is on the State to prove all elements of the alleged crime and to do so beyond a reasonable doubt; hence, the defendant does not have to establish his alibi, not even by a minimal standard of proof. "Evidence of alibi should come into a case like any other evidence and must be submitted to the jury for consideration of whether the evidence as a whole on the issue of presence proves the defendant's guilt beyond a reasonable doubt." Smith v. Smith, 454 F.2d 572, 578 (5th Cir. 1971), cert. denied, 409 U.S. 885, 93 S.Ct. 99, 34 L.Ed.2d 141 (1972).

276 Md. at 182, 345 A.2d at 438. Petitioner argues, in effect, that Grady created "new" law by overruling existing Maryland law on the alibi defense. The State has rejected this contention, arguing instead that Grady did not create "new" law and that Judge Miller's decision in Graham v. State, 454 F.Supp. 643 (D.Md.1978), which made Grady retroactive should be reconsidered by this Court.

The State takes the position, relying in part on Judge Morton's ruling in Davis v. State, 40 Md.App. 467, 391 A.2d 872 (1978), that Grady cannot be applied retroactively since there was no new law regarding the alibi defense. The State then concluded that Mullaney and Winship did not establish any new constitutional standard that could have been anticipated. This reasoning is clearly a misreading of the Mullaney and Winship holdings. As explained above, the full impact of Winship and Mullaney, including their retroactive application, took several years to become fully apparent, especially as applied to the specific context of erroneous alibi instructions. Mullaney was decided after petitioner's trial and his appeal, and while Winship came just one year before his trial, it is unrealistic to have expected someone in petitioner's situation to have fully appreciated the...