Truesdale v. Warden of Md. Penitentiary

• Decision Date: 20 January 1960
• Docket Number: No. 53,53
• Citation: 157 A.2d 281,221 Md. 617
• Parties: Edward Robert TRUESDALE v. WARDEN OF MARYLAND PENITENTIARY. Post Conviction
• Court: Maryland Court of Appeals

Page 617

221 Md. 617

157 A.2d 281

Edward Robert TRUESDALE v. WARDEN OF MARYLAND PENITENTIARY.

Post Conviction No. 53.

Court of Appeals of Maryland.

Jan. 20, 1960.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

HENDERSON, Judge.

In this application for leave to appeal from refusal to grant relief under the Post Conviction Procedure Act, all but one of the points raised below were adequately dealt with in an opinion by the lower court.

In his original trial applicant was represented by counsel and pleaded guilty to a charge of possession of a deadly weapon and possession of heroin, a narcotic drug. There was no motion for new trial or appeal. In his application for post conviction relief, he alleged that the court and city officers did 'corrobrate (sic) with each other in order of obtain, through conspiracy a prejudice and perjured statement * * *.' The court below attempted to dispose of the point by saying that 'indefinite and bald assertions of alleged perjury cannot be made the basis for relief in a collateral proceeding,' citing Nelson v. Warden, 216 Md. 648, 140 A.2d 516, 517. In the case cited, however, we said 'a claim of perjured testimony is unavailing in the absence of definite allegations that the State knew the testimony was perjured and the statement of facts showing the active participation of state officers in its use.' See also Northington v. Warden, Md.1959, 155 A.2d 651, citing State v. D'Onofrio, Md.1959, 155 A.2d 643.

In amplification of his charge of conspiracy, he alleges that Uncles, a codefendant in the narcotics case, likewise pleaded guilty and that a statement given by Uncles was considered by the court. He alleges that Uncles had been twice before convicted of narcotics charges, and gave a false statement 'in return for being indicted as a first offender,' which carried a lesser penalty. He alleges that the court and State's Attorney were aware of the statement's falsity, because they knew that Uncles was in fact a third offender, and because the court refused to allow the applicant or his counsel to call Uncles to the stand in order to interrogate him as to the promises made to him in regard to the statement.

The last reason assigned is not supported by the record. The applicant admits that when his counsel asked leave to interrogate Uncles concerning the statement, the court said there was no need, for 'I will assume he will deny it'. No objection was taken to the denial, nor was there any request for examination of Uncles for the purpose now suggested. The record does not disclose, nor is there any allegation as to the contents of the statement, or in what manner, if any, it tended to incriminate the applicant. Of course, after pleas of guilty had been accepted, the court was at perfect liberty, in connection with sentencing, to consider matters not formally put in evidence. It is difficult to conceive how it could have affected his guilt, since he was arrested by officers who found the revolver and large quantities of cannabis and heroin on his person. At most, it would seem that Uncles' statement could only have tended to corroborate the obvious inference that the applicant was a vendor and not simply a user.

We cannot find, on this record, that the court's refusal to hear testimony from Uncles, a ruling which was accepted without protest, was a denial of any constitutional right, available for post conviction relief. If we assume, without deciding, that Uncles might have been tried as a third offender, that fact does not prove that the statement, whatever it was, was false or that the State officials knew it to be false. In the absence of any disclosure as to the contents of the statement, we think the allegations fall short of raising a constitutional issue.

The applicant...