Booth v. Warden

Per Curiam. ⁴⁸² This is an application for leave to appeal from an order of Judge Stuart F. Hamill sitting in the Circuit Court for Allegany County denying relief prayed under the Uniform Post Conviction Procedure Act. The applicant alleged in his petition for relief: (1) that at his trial at which he was convicted of assault with intent to carnally know a female under the age of 14 years, his wife “was forced to testify by the State’s Attorney” on the threat that if she did not testify the State’s Attorney would bring out her “past criminal background”, and that her testimony was “prejudiced” ; (2) that one of the two judges who presided at his trial was prejudiced; (3) that it was impossible for him to have received an “unbias trial” due to “local newspaper advertisement” of his case; (4) that his counsel was incompetent “as he even failed to cross-examine” the appellant’s wife; (5) that he made oral statements to the police without being advised of his rights and “without presence of counsel” ; (6) that evidence “obtained through an illegal search and seizure, presented to the Court, even though ordered stricken from the record was hard to erase from the minds of the two presiding Judges”; (7) that the evidence was not sufficient to sustain the conviction. The applicant was afforded a full evidentiary hearing at which he was represented by counsel appointed for him. Nine witnesses testified, including both judges who presided at his trial, his wife and the attorney representing him at the trial, privately retained, who had been a member of the bar for 50 years and had extensive experience in the defense of criminal matters.

We have reviewed the transcript of the testimony at the hearing. With regard to the first allegation, the applicant testified that he had not heard the State’s Attorney threaten his wife ⁴⁸³ but was told of the threats by someone whose name he refused to divulge. We find nothing in the testimony of the applicant or his wife to show that her testimony at the trial was prejudiced. There is no merit in the allegation.

With regard to the second allegation, we agree with the finding of the hearing judge that there was not “an iota or scrap-, of evidence whatsoever” that the trial judge about whom the applicant complained was “in any way prejudiced in this, case.” With regard to the third allegation, the hearing judge found that there was not “a bit of competent testimony or evidence presented * * * to show that there was any impartiality (sic.) or prejudicial statements by the newspapers.” We agree. See McCoy v. Warden, 1 Md. App. 108 . With regard to the fourth allegation, assuming it to be true„ the failure to cross-examine is a matter of trial tactics and not per se sufficient to show that counsel was incompetent. Hines v. Warden, 236 Md. 406 ; Norris v. Warden, 1 Md. App. 69 .

At the hearing the allegation was made that counsel at the-trial had failed to call witnesses suggested by the applicant.. Counsel testified that he talked to the suggested witnesses and they had no evidence which was relevant to the trial. Three of them testified at the hearing and had no personal knowledge of the case. The hearing court found that the applicant’s counsel was justified in not calling the witnesses at the trial and we-agree.

At the trial,