Whitley v. Warden, Md. House of Correction, 78

• Decision Date: 30 March 1960
• Docket Number: No. 78,78
• Citation: 158 A.2d 905,222 Md. 608
• Parties: Joseph O. WHITLEY v. WARDEN MARYLAND HOUSE OF CORRECTION. Post Conviction
• Court: Maryland Court of Appeals

Page 608

222 Md. 608

158 A.2d 905

Joseph O. WHITLEY v. WARDEN MARYLAND HOUSE OF CORRECTION.

Post Conviction No. 78.

Court of Appeals of Maryland.

March 30, 1960.

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

BRUNE, Chief Judge.

The applicant, Joseph Olief Whitley, seeks leave to appeal from a denial of relief under the Post Conviction Procedure Act. He was convicted of second degree murder in the Circuit Court for Prince Georges County, by Judges Digges, Fletcher and Dorsey, on June 27, 1957, and was sentenced to a term of twelve years in the House of Correction. No appeal was taken from that judgment.

Whitley's original application for relief under the Post Conviction Procedure Act was filed in the Circuit Court for Prince Georges County on February 17, 1959, and counsel was appointed for him as an indigent. Previously he had filed two habeas corpus petitions in the Circuit Court for Baltimore County, one in the Circuit Court for Cecil County, and one in the United States District, all of which were denied. An application for leave to appeal from the denial of one petition by Judge Raine in one of the Baltimore County cases was denied by this Court in Whitley v. Warden, 214 Md. 647, 135 A.2d 889.

After the appointment of counsel in this proceeding an amended petition was filed by the petitioner on June 16, 1959. In addition to reciting the above prior applications and his conviction and sentence, it alleged that:

1. The applicant was illegally arrested.

2. He was taken from Prince Georges County to the District of Columbia for the purpose of being given a lie detector test, and that this was done without extradition proceedings.

3. He was questioned by police officers (it is not shown whether they were Maryland or District of Columbia police officers), that these officers said, 'If you will tell the truth it will make things much easier in all respects,' that after continuous questioning and many forms of threats the applicant confessed to the crime of which he was convicted.

4. The applicant was held for a period of fifty (50) hours illegally and against his will before being arraigned.

5. During the interrogation the applicant was not advised of his rights to an attorney nor permitted to speak with anyone during the fifty hours that he was held prior to arraignment.

6. The confession allegedly obtained by duress was the only evidence offered against the applicant.

7. State officers knowingly used perjured testimony to convict the petitioner.

8. The applicant's lawyers failed to summon witnesses on his behalf and talked him out of taking the stand and testifying on his own behalf at the trial.

Counsel were heard on the application, and it was denied by Judge Marbury.

Allegations numbered 1, 2, 4 and 5 concern alleged irregularities in the preliminary proceedings or during the trial, which may be open to attack on direct appeal, but cannot be challenged collaterally. Niblett v. Warden, Md., 155 A.2d 659; Banks v. Warden, 220 Md. 652, 155 A.2d 897. The involuntary character of a confession can also be raised on appeal, but not collaterally. Johnson v. Warden, 212 Md. 652, 129 A.2d 84; Eberle v. Warden, 209 Md. 657, 121 A.2d 708; Randall v. Warden, 208 Md. 667, 119 A.2d 712; Davis v. Warden, 208 Md. 675, 119 A.2d 365; Ferguson v. Warden, 218 Md. 644, 145 A.2d 772. Allegations 3 and 6, therefore, are unavailing to the applicant.

The eighth contention was finally litigated adversely to the applicant in Whitley v. Warden, 214 Md. 647, 135 A.2d 889. (We may add parenthetically that the docket entries indicate that summons was issued for three of the four witnesses alleged not to have been summoned and that the address of the fourth was outside of Maryland. There is some question as to the spelling of the last name of one of the three--'Gicker', as shown on the docket entries, or 'Guicher' as shown in the bill of particulars. Summons for Raymond S. Gicker was sent to two counties.) His seventh ground now alleged was also alleged to some extent in that proceeding but was found insufficient on that previous application for leave to appeal because Whitley failed to state any facts showing knowing use by the State of perjured testimony. We find no need to decide whether Whitley waived the question of the State's knowing participation in the use of perjured testimony when he failed to raise the...