Stevens v. Warden, Maryland Penitentiary

• Decision Date: 30 August 1967
• Docket Number: No. 10005.,10005.
• Citation: 382 F.2d 429
• Parties: Samuele T. STEVENS, Jr., Appellant, v. WARDEN, MARYLAND PENITENTIARY, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

382 F.2d 429 (1967)

Samuele T. STEVENS, Jr., Appellant, v. WARDEN, MARYLAND PENITENTIARY, Appellee.

No. 10005.

United States Court of Appeals Fourth Circuit.

Argued June 24, 1966.

Decided August 30, 1967.

Richard M. Squire, Baltimore, Md. (court-assigned counsel), for appellant.

Jon F. Oster, Asst. Atty. Gen. of Maryland (Thomas B. Finan, Atty. Gen. of Maryland, on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and SOBELOFF and J. SPENCER BELL,^* Circuit Judges.

HAYNSWORTH, Chief Judge:

Stevens, a Maryland prisoner sentenced to a term of twenty years upon a conviction of armed robbery, sought habeas corpus complaining of his representation in the trial court and of the sufficiency of the evidence to support the conviction. The sentence is shocking, but the conviction is unassailable on constitutional grounds.

In denying the petition, the District Court carefully considered the facts,¹ so that we may treat them more summarily here.

In the early hours of a Sunday morning after a Saturday evening's carousal, two Negroes got in an argument over $47. Barnes, the alleged victim, claimed the sum was taken from him by Stevens, substantially a stranger to him, at knife point. Stevens denied it, though claiming some other difficulty between the two after an evening spent as drinking companions.

Barnes, who had been drinking, approached a policeman sometime after midnight with a complaint that a Negro, whom he did not know but whom he had seen before and could identify, had robbed him of $47. Barnes told the policeman that his assailant had been armed with a butcher knife, and that there had been a scuffle in an alley. In the alley, the policeman found a butcher knife and a cap belonging to Barnes. Led by Barnes to the 700 block of Eislen Street in Baltimore, they found, after two or three tries, the house where the defendant lived. He was not at home, but presently Stevens, wearing a woman's green coat with a torn pocket, arrived in a taxicab with several packages. Barnes identified him as his attacker, and the three entered the house.

At the policeman's request, Stevens produced from his pocket $33 which he claimed he had just collected from a "Miss Elsie" for some painting work Stevens had done. He told the officer, in the presence of Barnes, that he and Barnes had met in a tavern earlier that night, that the two had spent several hours drinking together in Stevens' house, and that his landlady had forced Barnes to leave after objecting to the coarseness of his language. The landlady was present, and she corroborated Stevens in his statement of Barnes' presence earlier that night.

Barnes then offered to withdraw his charge and forget the whole thing if Stevens would pay him $47. Stevens declined to pay him anything on the ground that he owed him nothing.

At the trial, the story that Barnes told was supported in a material part by a witness who said he had seen Stevens and Barnes scuffling on a lighted porch off the alley. Stevens testified to his version of the events of the evening, and his version was partially corroborated by the policeman who testified that Stevens' landlady had affirmed Stevens' assertion that Barnes had spent several hours drinking with Stevens in her house that night.²

Conviction followed, and it was affirmed on appeal.³ Later, postconviction relief was denied.⁴

There is no substance in the contention that the trial record was so devoid of evidence of guilt as to offend the constitutional standard to be applied in a collateral proceeding. Barnes positively testified that Stevens grabbed him from behind and dragged him into an alleyway and up a stairway to a porch, that Stevens held a butcher knife to his throat and took his $47. At some point in the struggle, the knife was dropped and Barnes claimed that, in his attempt to retrieve the $47, he tore the pocket of the lady's green coat that Stevens was wearing. An occupant of the apartment testified that he stepped out on the porch, recognized Stevens and Barnes, and told them to stop, after which Barnes left, saying he was going to get a policeman, and Stevens also departed. The witness saw no knife and saw no robbery, but he unequivocally confirmed the prosecuting witness's testimony about the scuffle on the porch off the alley.

The testimony for the state, accepted by the trier-of-fact as true, was quite sufficient to make out the offense, as the Maryland Court of Appeals held on the direct appeal. It certainly meets the constitutional standard we must apply.⁵ In making this contention, Stevens relies in part upon the verity of some of the testimony favorable to the defense, which is impermissible, and upon an asserted lack of sufficiency of the identification of the knife. Barnes testified that the knife shown to him at the time of the trial looked like the one Stevens had used when committing the robbery, but the policeman, who retained possession of the knife after he picked it up, positively testified that the knife was the same one. There was no defect in its admission as evidence.

An attack is made upon the competency of Stevens' trial counsel. He had not long been admitted to practice, but he had handled several criminal cases, and the record here discloses a competent and faithful performance.

It is objected that the lawyer did not call Stevens' landlady. She had died before the postconviction hearing in the District Court, but the lawyer talked to her before the trial and was told by her that she would not testify that Barnes had been with Stevens in her house on the night in question. She mentioned the laws of perjury. Under the circumstances, it would have been quite foolish for the lawyer to call her as a witness when he could get from the policeman the fact that, at the time of the confrontation, the landlady had corroborated Stevens' claim that Barnes had been drinking with him in her house that evening.

The lawyer did not call "Miss Elsie" either. Had she appeared and testified that she had paid Stevens $40 that night, as Stevens claimed, it certainly would have been helpful to him, but there is every indication that "Miss Elsie" was a phantom. Stevens told his lawyer that the landlady could find "Miss Elsie" for him, but the landlady told him she could not and, implying that "Miss Elsie" was a nonexistent person, advised the lawyer not to waste his time attempting to look for her. During the initial investigation of the matter, the policeman went to the street where Stevens claimed that "Miss Elsie" lived and inquired at several houses, but could find no person by that name, and no one who had recently had four rooms painted. Stevens disparages the fact that the policeman did not find "Miss Elsie" by picking at his testimony to draw the inference that the policeman must have gone to the wrong houses and inquired for "Miss Elsie" by another name, but neither he nor his new attorneys could produce her at the postconviction hearings. The fact that she has not now been produced strongly confirms trial counsel's understanding, acquired from the landlady, that "Miss Elsie" was a figment.

Fault is also found with the lawyer because of the fact that the record of the trial indicates that he took no advantage of the opportunity to make a statement in mitigation of the...