Briscoe v. Warden

Per Curiam. Applicants for leave to appeal were indicted on January. 13, 1956, on a charge of murder arising out of a Christmas Eve slaying of a Baltimore grocer. They went to trial on March 12, 1956, before Judges Cullen and Mundy, without a jury, after pleading “not guilty.” On March 13 they were found guilty of murder in the first degree and were sentenced to life imprisonment. No motion for a new trial was made nor was an order for appeal filed.

On January 18, 1966, a petition for relief under the Uniform Post Conviction Procedure Act was filed as to Richard Briscoe. On March 7, 1966, a petition was filed by Tyrone Stokley. A joint evidentiary hearing was held on the petitions by Judge Joseph E. Carter on April 28, 1966, and August 3, 1966. He denied the petitions in orders filed on December 28, 1966.

Application for leave to appeal the dismissals was thereafter timely filed with this court. Petitioner Briscoe advances the following contentions: 1. Denial of effective assistance of counsel during a waiver of jurisdiction by the Juvenile Court. ¹⁸⁵ 2. The police coerced a statement from him. 3.

His counsel was incompetent. In regard to the first contention, the lower court correctly found that the juvenile court does not have jurisdiction of a capital offense; thus a waiver hearing was unnecessary. Bean v. State, 234 Md. 432 . Briscoe’s second contention is that the police coerced a confession from him.

The lower court held that this contention could not be raised under the Uniform Post Conviction Procedure Act, citing Cheeseboro v. Warden, 224 Md. 660 . We disagree. Since the decision in Mapp v. Ohio, 367 U. S. 643 (1961), many matters formerly treated as procedural have now been elevated to the status of constitutional rights, and this is now the case with a contention of an involuntary confession. Ledbetter v. Warden, 234 Md. 643 .

Since Briscoe alleges the existence of certain facts which, if believed by the trier of fact, might establish that his statement was involuntary, 1 we deem it necessary to remand as to this issue for a determination by the court with respect to the voluntariness of Briscoe’s statement. See Hargis v. Warden, 3 Md. App. 76 . The third contention, that his counsel was incompetent, was answered by the lower court under the standard of “farce” set forth in Bryant v. Warden, 235 Md. 658 . This “standard” is no longer in effect in Maryland, having been changed by the ¹⁸⁶ case of Slater v. Warden, 241 Md. 668 , to a determination of whether “under all the circumstances of the particular case has the petitioner been afforded a genuine and effective representation.” See Nash v. Warden, 243 Md. 700 ; Pressley v. Warden, 242 Md. 405 ; Cherrix v. Warden, 1 Md. App. 65 ; Norris v. Warden, 1 Md. App. 69 .

However, even under the new standard we do not believe that counsel was incompetent. The lower court found that counsel was competent, that any alleged errors were merely a matter of trial tactics. Error in trial tactics will not afford relief. Tucker v. Warden, 243 Md. 331 ; McCoy v. Warden, 1 Md. App. 108 .

The defense here was made exceptionally difficult by the number of witnesses placing the defendants at the scene of the crime and the confessions that were made and the competency of counsel must necessarily be viewed in the light of these circumstances. Petitioner Stokley raises the following allegations in his petition : 1. The judgment, conviction and sentence were obtained by the State on fraud. 2. Evidence had been illegally seized. 3.

No preliminary examination before a magistrate. 4. Perjured testimony by the State’s