Waller v. Director, Patuxent Institution
| Decision Date | 21 October 1966 |
| Docket Number | No. 76,76 |
| Citation | 223 A.2d 265,244 Md. 229 |
| Parties | Melvin D. WALLER v. DIRECTOR, PATUXENT INSTITUTION. Post Conviction |
| Court | Maryland Court of Appeals |
Before HAMMOND, C. J., and HORNEY, MARBURY, BARNES and McWILLIAMS, JJ.
In the original application for leave to appeal from the order denying Melvin D. Waller post conviction relief from his imprisonment for assault, the applicant contended as he did below: (1) that he was not confronted with the witness Yetta Schaeffer; (2) that he was never identified in the Phyllis Marcum case; (3) that his rights were violated by the remarks of the State's Attorney; (4) that he was entitled as a matter of law to a directed verdict in the Marcum case; and (5) that his trial and appellate counsel, both court-appointed, were incompetent. Subsequently, however, two other contentions made by the applicant in proper person were received by the Clerk of this Court following the receipt of the original application for leave to appeal. In one, he merely cited Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), apparently as an addendum to the first contention. In the other, the contention is, (6), that he was indicted by an illegally constituted grand jury.
The application for leave to appeal will be denied as to the first four contentions for the reasons stated in the opinion filed by Judge Sklar in the lower court. With further reference, however, to the first contention: if, in citing Pointer, it was the intention of the applicant to also contend that the right to be confronted with the named witness included the right to cross-examine her, we point out that the applicant, in expressly waiving (as the record shows he did) the right to be confronted by the witness, he necessarily also waived the right to cross-examine her. In so holding, we disagree with the inference that Dutton v. State, 123 Md. 373, 91 A. 417 (1914), is not distinguishable on the facts from the present case. In Dutton the right to be confronted with the witnesses against him was neither waivable nor waived under the facts of that case, but in the present case, where the applicant through his counsel stipulated in open court as to the testimony of the absent witness and consented to its being read into the record, it is apparent that the right of confrontation was not only waivable but was in fact waived.
With regard to the fifth contention-to the effect that his trial counsel and appellate counsel (on the direct appeal) were incompetent-it appears that the decision of the hearing judge was not entirely consistent with the existing law. While it was formerly the law that in order to raise a question in a post conviction proceeding as to the incompetence of counsel there either had to be an allegation of fraud or...
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