State v. Merchant, 81

• Decision Date: 28 December 1970
• Docket Number: No. 81,81
• Citation: 10 Md.App. 545,271 A.2d 752
• Parties: STATE of Maryland v. Gus MERCHANT. Post Conviction
• Court: Court of Special Appeals of Maryland

Page 545

10 Md.App. 545

271 A.2d 752

STATE of Maryland v. Gus MERCHANT.

Post Conviction No. 81.

Court of Special Appeals of Maryland.

Dec. 28, 1970.

Francis B. Burch, Atty. Gen., Baltimore, Julian B. Stevens, Jr., State's Atty., Anne Arundel County, Annapolis, for appellant.

Richard L. Stack, Glen Burnie, for appellee.

Presented to MURPHY, C. J., and ANDERSON, MORTON, ORTH, THOMPSON, MOYLAN and POWERS, JJ.

PER CURIAM:

The application for leave to appeal is denied for the reasons set forth in the thorough and excellent opinion of Judge E. Mackall Childs in the Circuit Court for Anne Arundel County, dated May 12, 1970.

Application denied.

MEMORANDUM OF OPINION

The petitioner, Gus Merchant, an inmate of the Maryland Penitentiary serving a commuted sentence of death for rape, seeks relief under the Uniform Post Conviction Procedure Act, Article 27, Section 645A, et seq. of the Maryland Code. A hearing on this, the petitioner's first post conviction petition, was held on April 1, 1970.

On October 9, 1957, the petitioner, a negro laborer, was tried before Judges Benjamin Michaelson and Matthew Evans, sitting without a jury, and found guilty of the rape of a white Glen Burnie housewife. One week later he was sentenced to death by the administration of lethal gas. Following an unsuccessful appeal, Merchant v. State, 217 Md. 61, 141 A.2d 487, Governor McKeldin commuted the petitioner's sentence to life imprisonment.

At his trial, the petitioner was represented by court appointed counsel, Noah A. Hillman, Esquire, an experienced and respected member of the bar, who was assisted by a younger associate, John A. Blondell, Esquire, who made investigations and represented the petitioner at the sentencing. The petitioner's defense asserted by counsel throughout the trial consisted primarily of an attack on the voluntariness of the 'confession' given by Merchant to the police. The petitioner was thoroughly advised of his right to testify or remain silent at his trial and did not testify in his own behalf even though he had persistently maintained in his statement and to his attorneys at all times prior to his conviction, that the victim had consented to the intercourse. No attempt was made by counsel to develop this defense or to conduct any investigation into the reputation of the prosecutrix. On the appeal after conviction Merchant's counsel again raised the issues of the voluntariness of the confession, the insufficiency of the evidence, and the excessiveness of the penalty.

In this petition, the petitioner makes the following allegations:

1. That he was denied due process of law.

2. That the 'confession' was involuntary.

3. That the court failed to scrutinize the evidence.

4. That the defendant was denied the right to testify in his behalf.

5. That evidence was suppressed.

6. That adverse publicity prejudiced his trial.

7. That the petitioner was denied his constitutional right to have genuine and effective representation by counsel for his defense in that the petitioner's court appointed attorneys who, as a result of prejudging the petitioner's guilt, failed to pursue the defense of consent or make an appropriate investigation into the reputation of the prosecutrix.

The petitioner's present court-appointed attorney waived final argument on all contentions save the allegation as to incompetency of counsel. However, this court in event of appeal must make a finding on each ground asserted. Rule BK45 b; Farrell v. Warden, 241 Md. 46, 215 A.2d 218.

I DENIAL OF DUE PROCESS

The bare allegation of denial of due process is not sufficient to sustain post conviction relief. Austin v. Director, 237 Md. 314, 206 A.2d 145; Briscoe v. Warden, 3 Md.App. 182, 238 A.2d 304.

II

THE 'CONFESSION'

This allegation that the confession was involuntary was finally determined by the Court of Appeals in petitioner's appeal, Merchant v. State, supra, and may not be relitigated in post conviction proceedings. Meadows v. Warden, 243 Md. 710, 222 A.2d 249.

III FAILURE OF COURT TO SCRUTINIZE THE EVIDENCE

Sufficiency of the evidence may not be reviewed in a post conviction case. Austin v. Director, supra; Johnson v. Director, 243 Md. 708, 222 A.2d 248. IV

DENIAL OF RIGHT TO TESTIFY

The court finds that after the State had rested its case, counsel and petitioner engaged in a lengthy discussion as to whether or not Merchant would testify in his own behalf and the decision not to testify was that of Merchant.

V

SUPPRESSION OF EVIDENCE

See explanation for rejecting first contention.

VI

PREJUDICIAL PUBLICITY

The court found no evidence of unduly prejudicial pretrial publicity. The only reference of talk of lynching was contained in Judge Michaelson's dissertation prior to sentencing. Moreover, this was a court trial and there was no showing whatsoever that the two judges hearing the case had been influenced by any pretrial publicity.

VI

DENIAL OF EFFECTIVE REPRESENTATION

It is well-established that in a post conviction hearing a petitioner is not precluded from raising the issue of incompetency of counsel because he failed to raise the issue at trial or pursue it on appeal. Sample v. Warden, 6 Md.App. 103, 107, 250 A.2d 269; O'Connor v. Warden, 6 Md.App. 590, 594, 253 A.2d 434. Therefore, this petitioner is entitled to have this allegation considered.

The test for determining incompetency of counsel for purposes of habeas corpus and post conviction review which obtained at the time of the petitioner's original trial appears to have been whether there existed at the trial (1) bad faith, (2) fraud, (3) collusion with the State on the part of defense counsel, or (4) such incompetency as would make the trial a farce. Slater v. Warden, 241 Md. 668, 217 A.2d 344. More recently, the test has been whether under all the circumstances of the particular case the petitioner was afforded genuine and effective representation. Hyde v. Warden, 235 Md. 641, 202 A.2d 382. Slater, supra, also appears to hold that a post conviction petitioner is entitled to have applied the test which obtains at the time of his post conviction petition and not the test which obtained at the time of his trial.

Mere errors in trial tactics are not sufficient to constitute incompetency of counsel. Hall v. Warden, 224 Md. 662, 665, 168 A.2d 373; Gullion v. Warden, 3 Md.App. 263, 265, 239 A.2d 140; Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408. Furthermore, failure to raise an available defense at trial does not, in itself, constitute incompetency of counsel. Annotation at 74 A.L.R.2d 1390, 1449.

The prosecuting witness testified that on the morning of July 25, 1957 she had prepared her husband's breakfast and he had left for work at 5:30 A.M. She shut the door and locked it, cleaned the table, straightened the kitchen, and looked at her sleeping children, ten and twelve years of age. She then stated she went back to bed and was asleep when the defendant jumped on top of her in bed, threatened her with a knife, and demanded sexual intercourse. She related several involved conversations with the intruder who is alleged to have had a knife in his hand. After having relations with her, he is alleged to have demanded five dollars for bus fare. She gave him eleven dollars and continued to converse with him while fixing herself a cup of coffee.

After his departure she fixed breakfast for her two boys, cleansed herself, dressed, made the bed, and went next door to her sister's home where she reported she had been raped.

Meanwhile, the petitioner, only a short distance from the prosecutrix's home, engaged in conversation with Mr. and Mrs. Jesse Quarles and paid Quarles $1.90 for a previous loan and transportation to work. He then went to a nearby liquor store and bought a small bottle of wine. From thence he went to the home of his mother-in-law where he paid her $8.00. It was there later in the same day that the police found him hiding in a clothes closet.

That evening after several hours of intermittent questioning, Merchant asked the interrogating officer if it would be easier on him if he told the truth. The policeman responded that he would make no promises,-'but the truth hurts no one.' Thereupon, Merchant proceeded to give a statement which was exculpatory in nature wherein he admitted having intercourse with the prosecuting witness, but stated it was voluntary on her part. See Merchant v. State, supra, 217 Md. pages 68-69, 141 A.2d 487.

Messrs. Hillman and Blondell entered their appearances for the petitioner on October 5th, 1957. While Merchant at the hearing complained that counsel did not visit him often enough, he did state that he saw them twice before the arraignment on September 24th. He stated that he wanted a jury trial, but Mr. Blondell decided on a court trial and that Mr. Hillman suggested he plead guilty and throw himself on the mercy of the court.

The court is of the opinion, and so finds, that defense counsel were conscientious, attentive, and thorough in so far as their theory of the case was concerned. The court believes Mr. Blondell in his statement that he visited Merchant at least twelve times before the trial, and personally checked the stories of all persons whose names were given him by his client to determine whether or not they would be helpful in his case as witnesses. Mr. Blondell has since this case had extensive criminal law practice both in a prosecutorial and defense capacity and testified that in reviewing the procedure in the case he would not in the light of his experience, since acquired, try the case in a different manner. Mr. Hillman's established reputation as an experienced and ethical practitioner needs no embelishment from this court.

However, the following colloquy took place during Mr. Hillman's testimony:

Mr. Hillman:

On Direct Examination by Mr. Weathersbee (State's Attorney)

Q. In Regard to the confession, what if anything did the defendant Merchant before trial on the conferences of the third,...