Smith v. DIRECTOR, PATUXENT INST., STATE OF MD.

• Decision Date: 28 September 1973
• Docket Number: Civ. No. 20382.
• Citation: 395 F. Supp. 813
• Parties: Ronald H. SMITH v. DIRECTOR, PATUXENT INSTITUTION, STATE OF MARYLAND.
• Court: U.S. District Court — District of Maryland

395 F. Supp. 813

Ronald H. SMITH v. DIRECTOR, PATUXENT INSTITUTION, STATE OF MARYLAND.

Civ. No. 20382.

United States District Court, D. Maryland.

September 28, 1973.

Barry Bach, Baltimore, Md., court-appointed counsel, for plaintiff.

Francis B. Burch, Atty. Gen. of Maryland, and John P. Stafford, Jr., and Emory A. Plitt, Jr., Asst. Attys. Gen. of Maryland, Baltimore, Md., for defendant.

MEMORANDUM AND ORDER

FRANK A. KAUFMAN, District Judge.

Ronald Harry Smith, presently confined in the Maryland Penitentiary, seeks habeas corpus relief in this Court for the first time. On June 4, 1966, Smith was found guilty after a jury trial in the Circuit Court for Howard County, Judge James MacGill presiding, of murder in the first degree and armed robbery. For those offenses Judge MacGill sentenced Smith respectively to confinement for life and for twenty years, the sentences to run concurrently. Smith did not appeal from those judgments.

On July 10, 1967, Smith filed a petition in the Circuit Court for Howard County seeking relief under the Maryland Post Conviction Procedure Act.¹ After an evidentiary hearing in which Smith, represented by court-appointed counsel, testified on his own behalf, Judge T. Hunt Mayfield denied relief in a Memorandum and Order dated December 8, 1967.² On July 15, 1968, the Court of Special Appeals of Maryland denied Smith leave to appeal from Judge Mayfield's decision.³ Subsequently, the Court of Appeals of Maryland declined to entertain Smith's application for further review.

In his within petition, Smith contends that his present confinement is illegal because:

(1) evidence obtained as a result of an unlawful search and seizure was admitted at his trial;

(2) oral and written confessions admitted into evidence at his trial were involuntary and illegally obtained by the police;

(3) in-court identifications of Smith by certain witnesses for the State were tainted in that on the day of his trial, Smith "while awaiting the commencement of the trial was handcuffed in the hallway on a bench outside the court-room surrounded by uniformed and plainclothes police officers" and that "witnesses who were to point the petitioner out in the courtroom later that same day . . . had an unobstructed view of the petitioner . . ." (4) the police suppressed facts concerning the failure of certain witnesses to identify anyone at certain out-of-court lineups at which petitioner was not present;

(5) "massive, pervasive, and prejudicial publicity attending petitioner's prosecution" denied him a fair trial;

(6) his re-indictment after the decision in Schowgurow v. State, 240 Md. 121, 213 A.2d 475 (1965), was illegal;

(7) "the denial of petitioner's request for the transcript of his original trial for use in the post-conviction proceedings, because of his indigency, deprived him of a fair evidentiary hearing . . .";

(8) he was denied effective assistance of counsel at his post-conviction hearing because counsel was denied the opportunity to examine his trial transcript;

(9) he was denied assistance of counsel in the preparation of his appeal from the denial of post-conviction relief;

(10) in connection with certain issues raised in his post-conviction proceeding, the application by the state courts of the "presumption that the petitioner waived his rights by not taking a direct appeal from his conviction . . . denied the petitioner due process of law"; and

(11) "the Maryland Court of Special Appeals erred in applying the doctrine of Miranda v. Arizona . . . to petitioner's confession when at the evidentiary hearing he relied on Escobeda v. Illinois sic . . .."

Smith seemingly also contends that he was denied the right to appeal his original conviction. In his within petition he states:

The petitioner did not appeal from the sentencing, because of the fact that he would have been subjected to the possibility of a severer sentence, such as life imprisonment plus 20 years consecutive, or to the death penalty, if he was successful in overturning this conviction and was again convicted in the subsequent retrial.

The petitioner was informed of the above fact by his attorney, Edward B. Rybczynski, Esq., when he informed said attorney that he wished to appeal the sentencing and that he would like for him to file the appeal in his behalf. It was due to the mental coercion exerted on the petitioner by this attorney, after the petitioner advised him that he wanted him to file an appeal on his behalf, that no appeal was filed.

In a letter to this Court dated December 30, 1969, which this Court in a Memorandum and Order dated January 8, 1970, treated as a supplement to the within petition, Smith additionally complains:

(12) he has been repeatedly transferred "from the custody of one penal institution to another without informing me the reason and without my receiving a copy of an order of court";

(13) he is innocent of the crimes of which he was convicted; and

(14) the police suppressed evidence tending to link other individuals with the crime.

Subsequently, Smith abandoned all contentions previously advanced by him in this case save the contention that the fruits of an illegal search and seizure were admitted into evidence at the trial of his case.⁴ On November 21-22, 1972, an evidentiary hearing was held in this Court in order to consider the merits of Smith's search and seizure contention.

Facts

On August 3, 1965, at approximately 9:35 a. m., a store known as the Shoepermarket, Inc., located in the South-view Shopping Center, Anne Arundel County, was robbed. In the course of that holdup, the robber, who was armed with a .22 caliber revolver, shot and killed Rose Kaczmarick, a saleslady. The manager of the store, Fred Gump, who was the only witness, described the assailant as a 5'9" or 5'10", 185-pound caucasian male with black hair who was dressed in a white T-shirt, black jacket, black pants and who was wearing large, aviator-type sunglasses.

At 6:30 a. m. on August 18, 1965, the Sanitary Supermarket at 500 Ritchie Highway, Anne Arundel County, was robbed by a man brandishing a .22 caliber revolver, who witnesses described to the police as a 5'8" to 5'10" white male of 170-180 pounds who was dressed in a dark jacket and wearing thin, metal-rimmed, round sunglasses.

After the robbery of the Sanitary Supermarket, the suspicion of the police focused on one Jack Fisher, who had stayed at the Park Plaza Motel the night before the robbery. The Park Plaza Motel is located approximately five to six blocks from the Shoepermarket and two blocks from the Sanitary Supermarket. When questioned by the police after the supermarket robbery, the proprietress of that motel described Fisher as a 25-30 year old white male with brown hair. The police also had information that a man matching the description of the Shoepermarket and Sanitary robber had been picked up by a cab at room 3 of the Park Plaza Motel at 6:55 a. m. on August 18, 1965, shortly after the Sanitary holdup. Later that day, the police, after inspecting room 3 and investigating Jack Fisher, determined that that name was fictitious.⁵

At approximately 8:00 p. m. on August 30, 1965, there was an armed robbery at the F. W. Woolworth store in the Ritchie Highway Shopping Center, Anne Arundel County, which is located approximately ½ mile from the Park Plaza Motel. A clerk at the store described the suspect to the police as a 5'8" to 5'10" person of approximately 160 pounds dressed in a black jacket, white shirt, and wearing aviator-style sunglasses.

At approximately 9:30 p. m. on August 30, 1965 detective Andrew Brady and detective corporal Charles Miller met at the Park Plaza Motel. The proprietress informed them that Jack Fisher, who fitted the suspect's description, was staying in room 6, although she did not know whether he was in his room at that moment. Officers Brady and Miller forthwith proceeded to Smith's room where, looking through the window, they saw a light on in the bathroom and illumination from a television screen. Thereupon, Officer Miller rapped on the motel door, and although during a hearing in this Court on November 21, 1972 Miller could not recall if he announced that they were officers, Brady clearly recollected that they stated their identity. Smith, however, stated that the police neither knocked nor announced themselves.

The officers, after getting no response from inside, used a passkey to open the door. They entered the room, Officer Brady switched on a light, and Smith opened fire, causing the officers to leave the room. A gun battle ensued which ended only after police reinforcements discharged three tear gas cannisters into the room, causing Smith to go from the room to the sidewalk outside the motel where he was disarmed and arrested. Since Smith was wounded, the police promptly took him to a nearby hospital for treatment.

While Smith was at the hospital, officer Miller searched the room and seized approximately 30 items. The following morning the police took several pictures of the motel room. At no time did the officers seek or obtain an arrest or a search warrant.

At the hospital, Smith was treated for a minor flesh wound of the leg. He was taken to the headquarters of the Anne Arundel Police Department. After being advised of his right to remain silent, Smith made an oral confession which officer Flannery typed verbatim. Smith commenced the making of his confession at 2:15 a. m., August 31, 1965, and signed the typed transcript thereof at 6:45 a. m. Officer Brady and another Anne Arundel police officer also signed that document. At Smith's trial a black jacket, one of the aforementioned approximately 30 items which the police had seized from the motel room, was introduced into evidence, as were the pictures of the motel room and a part of Smith's confession including the portion in which Smith identified the black jacket. Smith's trial counsel did not object to the introduction into evidence of either the...