Whitaker v. Warden, Maryland Penitentiary, 10295.

• Citation: 362 F.2d 838
• Decision Date: 20 June 1966
• Docket Number: No. 10295.,10295.
• Parties: Victor Calvin WHITAKER, Appellant, v. WARDEN, MARYLAND PENITENTIARY, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

362 F.2d 838 (1966)

Victor Calvin WHITAKER, Appellant, v. WARDEN, MARYLAND PENITENTIARY, Appellee.

No. 10295.

United States Court of Appeals Fourth Circuit.

Argued February 7, 1966.

Decided June 20, 1966.

John C. Sullivan, Cumberland, 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 BOREMAN and BRYAN, Circuit Judges, and HUTCHESON, District Judge.

BOREMAN, Circuit Judge:

After serving more than ten years of a life sentence for statutory rape, Victor Calvin Whitaker filed his habeas corpus petition in the Maryland District Court in which he charged that he did not receive effective assistance of counsel during the proceedings which led to his present incarceration. The lower court, erroneously we think, denied relief.

On the morning of July 16, 1954, Whitaker's wife went to the office of the State's Attorney for Allegany County, Maryland, and complained that Whitaker had engaged in sexual intercourse with her eleven-year-old daughter by a previous marriage. Whitaker was arrested that afternoon and signed a statement admitting the offense.

Shortly after making her complaint, Mrs. Whitaker informed her aunt, Mrs. McElfish, of the events which had transpired. Mr. Manges, an attorney, was then engaged by Mrs. McElfish and looked to her for his fee. The District Court found that Mrs. Whitaker and Mrs. McElfish informed Mr. Manges that they wanted the case disposed of quickly, quietly and with as little notoriety as possible in order to protect the child involved. The subsequent conduct of Whitaker's defense supports the inference that his counsel was obeying instructions.

After accepting employment the attorney first conferred with Mrs. Whitaker in his office, and then proceeded to the office of the State's Attorney. Upon his arrival there he learned that Whitaker had already signed a confession. Manges then talked with Whitaker and was informed that the statement was true and voluntarily given. The State's Attorney's office wished to have the statement notarized but had no one available who could perform that function. Upon request Manges then notarized his client's confession.

Whitaker, presumably upon the advice of counsel, waived indictment by the grand jury and requested an immediate trial before the court upon an information. The trial was held on July 23, 1954, one week following Whitaker's arrest. Counsel tendered a guilty plea in Whitaker's behalf. However, when the trial court expressed its opinion that some evidence should be taken because the case involved a possible death penalty, Manges changed the plea to nolo contendere. Testimony, none of it extended, was then taken from the investigating officer who obtained Whitaker's confession, the medical officer who had examined the alleged victim after the complaint had been lodged against Whitaker, and the stepchild herself. Mrs. Whitaker declined to testify against her husband. Counsel's cross-examination was limited to two questions addressed to the investigating officer which were designed to show that the accused had cooperated with the investigating authorities. After the presentation of evidence, counsel spoke at some length in pleading for clemency.

The District Judge, clearly troubled by the highly suspicious circumstances of the case, acknowledged that "there is the smell of foul fish about." However, he concluded that no "fish" could be found. Despite the finding that Mrs. Whitaker and Mrs. McElfish desired a quick, quiet ending to the family tragedy which had occurred, the court found that Manges had not served their interests to the detriment of his client. The basis of this finding was the court's belief that the two women desired also that Whitaker should be dealt with leniently, that Mrs. Whitaker had not understood the gravity of the charge which she had lodged against her husband and that she was subsequently remorseful about lodging the complaint. The court felt that Manges had not been retained to assure that Whitaker would be "quietly put away" but rather to "do what he could" for Whitaker.

While recognizing a lack of vigor in counsel's defense of Whitaker, the court reached the conclusion that there was little more, if anything, which the attorney could have done since the accused had confessed and insisted upon telling the truth about his revolting conduct. However, even if we assume that under the circumstances Manges' defensive efforts were necessarily restricted to entering a nolo contendere plea and urging leniency, our study of the record in the case convinces us that the expressed interest of Mrs. Whitaker and Mrs. McElfish in a speedy, unpublicized disposition of the statutory rape charge and in protecting Mrs. Whitaker's daughter may have materially influenced the nature and extent of counsel's efforts to present a defense.

At the hearing before the District Court, Mr. Manges testified as follows:

"* * * Here we had a girl who was only eleven years old, but the doctor had testified was not a virgin.

"I had gone into her background and she, apparently, had been going with boys for quite some time."

It is true that there was evidence before the trial court of sexual relations between Whitaker and his stepdaughter on one occasion prior to the act which was the basis of the prosecution. Mr. Manges testified before the District Court he feared that a vigorous defense might arouse the prosecution to present evidence of yet other similar offenses. Nevertheless, the statement of counsel quoted above leaves little to the imagination. Taken in context, the reasonable inference to be drawn therefrom is that, during his investigation of the case, he had uncovered evidence of the victim's sexual promiscuity.

Manges' testimony below indicates that he had disclosed his information to the trial court. He stated:

"* * * If I recall, I stressed the fact that the evidence of the doctor indicated that this child, even though eleven, had not been a virgin, I went into that very thoroughly."

However, the transcript of the trial discloses no mention of this evidence or information in pleading for leniency. That such evidence could have been properly received by the trial court would not seem open to question. In Murphy v. States, 184 Md. 70, 40 A.2d 239 (1944), the court stated:

"The rule is well settled that where the court must determine the punishment to be imposed, either on the finding of the jury or on a plea of guilty, it is proper for the court to hear evidence, by affidavit or otherwise, in aggravation or mitigation of punishment." 184 Md. at 82, 40 A.2d at 244.

See also the more recent case of Farrell v. State, 213 Md. 348, 355, 131 A.2d 863, 867 (1956).

Moreover, we think that there can be no doubt that evidence of promiscuous sexual misbehavior on the part of the victim would have been relevant to a determination of the proper sentence to be imposed. While the crime is revolting and reprehensible under any circumstances, it might be considered less so if the girl involved was not an innocent child, but rather one who was sexually wise and experienced far beyond her years. In the instant case, Whitaker desperately needed the benefit which might derive from the disclosure of any mitigating factors. His crime was aggravated by the girl's tender age and her familial relationship with him. Yet, counsel appears to have made no attempt whatsoever to apprise the court of the girl's background, which his testimony strongly indicates he knew to be bad. Had he brought this information to the court's attention, Whitaker's punishment might have been less severe.¹ His statement that he stressed such evidence to the trial court, for which we find no support in the trial record, supports the view that he was aware that Whitaker's best...