Abdullah v. State

Gilbert, C. J., delivered the opinion of the Court. Nadir Yazid Abdullah, also known as Dythian T. Robeson and "Dykie,” was convicted in the Criminal Court of Baltimore on April 21, 1977, of murder in the first degree, a handgun violation, and assault with intent to murder. This Court affirmed the convictions on appeal. Robeson v. State, 39 Md. App. 365 , 386 A.2d 795 (1978).

Certiorari was granted by the Court of Appeals. That Court affirmed, albeit for different reasons. Robeson v. State, 285 Md. 498 , 403 A.2d 1221 (1979), cert. denied, 444 U.S. 1021 , 100 S. Ct. 680 , 62 L. Ed. 2d 654 (1980). Abdullah-Robeson filed a post conviction petition in the Criminal Court on April 23, 1980, alleging, inter alia, that: 1.

He was deprived of his right to be present at the voir dire of the jury panel. 2. His trial counsel "failed to adequately and competently represent him.” 3. "A State’s witness provided false testimony.” A hearing was held before Judge Albert L. Sklar, who, in a written opinion and order dated October 14,1980, rejected ¹⁴³ Abdullah’s claims and denied post conviction relief. Abdullah then filed an application with this Court for leave to appeal.

Here, he raises the same three issues that he posed to the hearing court. By order dated December 23, 1980, we granted the leave to appeal and transferred the case to the regular docket. 1. Md. Rule 724 provides that a defendant in a criminal proceeding "shall be present at every stage of the trial, including the impaneling of the jury .. . .” (Emphasis supplied.) The rule has been in effect for quite some time, and it states "with particularity” the "common-law right preserved by Art. 5, Declaration of Rights, Constitution of Maryland.” Young v. State, 5 Md. App. 383, 388 , 247 A.2d 751, 754 (1968). The right, however, may be waived pursuant to Md. Rule 724 C. The right may also be waived by failing to raise it on direct appeal.

A reading of Robeson v. State, supra, will reveal that the question of Abdullah’s presence vel non at the voir dire of the jury was not raised in the appeal. Md. Ann. Code art. 27, § 645 A (c) provides that "an allegation of error shall be deemed to be waived when a petitioner could have made, but intelligently and knowingly failed to make, such allegation ... on direct appeal .. . .” Although Abdullah did not raise the question in his direct appeal, is his failure to raise it a knowing and intelligent waiver? He testified at the post conviction hearing that no one told him he had the right to be present at voir dire, nor did he know that he had that right. Abdullah told Judge Sklar that an objection would have been interposed by him to allowing a security guard as a member of the jury.

He also said that he would have objected to jurors who were related to police officers or who knew any of the officers who would testify. Each of the prospective jurors, however, expressly swore that a vicarious connection with law enforcement would not influence in any way their decision in the case. ¹⁴⁴ We are here concerned over what constitutes a waiver, and when it is applied. May a new trial be ordered on post conviction simply upon the petitioner’s testimony that he did not know he could be present at voir dire, and that his attorney did not advise him of his right to be present at the same? If that is enough to require a new trial, we can foresee that new trials will be the rule rather than the exception, inasmuch as petitioners will, with regularity, contend that they did not know of a certain right, nor were they advised of that right.

The Court of Appeals apparently recognized that factor when, in Curtis v. State, 284 Md. 132 , 395 A.2d 464 (1978), it said that allegations of ignorance of the law were clearly inadequate to entitle a petitioner to post conviction relief. Judge Eldridge, in Curtis , noted that "in the normal case, unless the defendant shows 'cause’ and 'actual prejudice’ for failing to comply with a legitimate State procedural requirement, the 'procedural default’ should be upheld.” 284 Md. at