Carroll v. Warden

Per Curiam. This is an application for leave to appeal from an order dated June 23, 1966 by Judge Kathryn J. Shook, in the Circuit Court for Montgomery County, denying relief sought by the applicant under his second petition filed pursuant to the provisions of the Uniform Post Conviction Procedure Act. Applicant, who was represented by counsel and pleaded not ⁴⁷⁵ guilty at his trial, was convicted of first degree murder by the court sitting without a jury and sentenced on October 15, 1951 to serve a life term. He took no appeal from that judgment.

On November 24, 1959 a hearing was held before Judge Ralph Shure on applicant’s first petition for relief under the Act. Counsel representing petitioner at the post conviction hearing told the court at the outset of the proceedings that he had not made as much of an investigation as he would have liked to have made, and that he had not had an opportunity to talk to some witnesses with whom he would have liked to have talked. He further told the court that “at the end of the hearing, I may request further time.” Counsel thereafter put the applicant on the witness stand and asked him the following question : “Will you tell the court why you are here today, in as brief a way as you possibly can ?” In response to that question, applicant testified: “Well, I am here, I am trying to receive some sort of consideration from the verdict that was rendered against me. I do not feel that I should have been convicted of first degree murder, due to the fact that evidence in the case was withheld.” During the course of the testimony presented at this hearing, it became clear that applicant was complaining that an iron jack handle allegedly wielded by the victim of the homicide, with which he struck the applicant a number of blows, and with which he was advancing upon applicant to do further damage when applicant shot him, was not physically put into evidence at the trial; and that, as a result of such non-admission, the trier of fact did not fully appreciate the circumstances under which applicant shot the victim.

The other item of evidence allegedly withheld was applicant’s wallet which the deceased allegedly stole from him just prior to the killing, and which was thereafter recovered from his body by police. Applicant testified at the hearing that “if the evidence had been presented as it should have been, I don’t believe that I would have been convicted of first degree murder.” Applicant admitted, however, ⁴⁷⁶ that the fact of the victim’s use of the jack handle to beat him was testified to at the trial. At the conclusion of the hearing, Judge Shure delivered an oral opinion in which he held that the matters raised by the applicant were evidentiary only and that no federal constitutional questions were involved. He denied the petition, stating that all of the matters raised had been previously adjudicated (presumably at the trial).

Addressing the applicant, he stated that he was “represented by a fine lawyer” at the trial and that “if there had been anything that he could raise on an appeal that was proper, he certainly would have done it.” Application for leave to appeal was denied on the ground that petitioner’s contentions dealt only with evidentiary matters and were not grounds for relief under the Act. Carroll v. Warden, 222 Md. 618 . Applicant filed his second petition for relief under the Act on November 26, 1965, raising these contentions: 1. That he was denied due process of law. 2.

That he was denied a fair trial. 3. That his attorney was inadequate. In his petition, applicant contended that had he received a fair trial, he would have been granted a self-defense verdict, since he was not