Curtis v. State

Eldridge, J., delivered the opinion of the Court. This case concerns the interpretation of a provision of the Maryland Post Conviction Procedure Act, Maryland Code (1957, 1976 Repl. Vol.), Art. 27, § 645A (c), relating to those circumstances under which one is deemed to have “waived” an issue. ¹³⁴ I. The petitioner, Ottway Leon Curtis, Sr., was convicted of first degree murder on September 14, 1967, in the Circuit Court for Prince George’s County. Represented by his appointed trial counsel, Curtis took an appeal to the Court of Special Appeals.

The only issue raised on that appeal was whether Curtis was “denied due process and equal protection of the laws by the court’s inquiry into the prospective jurors’ beliefs regarding capital punishment.” Answering this question in the negative, the Court of Special Appeals affirmed the conviction, Curtis v. State, 4 Md. App. 499 , 243 A. 2d 656 (1968). We subsequently denied a petition for a writ of certiorari, Curtis v. State, 252 Md. 730 (1969). Thereafter, Curtis, represented by different counsel, filed his first petition for relief under the Post Conviction Procedure Act. This petition alleged that: (1) Curtis was denied due process and equal protection because of the admission at his trial of hearsay testimony by the State’s witnesses; (2) Curtis’s right to a jury trial was denied because a juror was inattentive; (3) his constitutional rights were violated by “the trial court’s failure to allow and/or call three or more doctors to testify” as to his sanity; and (4) the trial court erred by disregarding testimony indicating that Curtis was intoxicated at the time of arrest.

After a hearing on the merits, the circuit court denied relief on May 28, 1970. An application for leave to appeal was then denied by the Court of Special Appeals. On March 29, 1976, Curtis instituted the present case by filing his second petition under the Post Conviction Procedure Act. This time Curtis was represented by a third attorney.

In this petition he alleged for the first time that he had been deprived of his Sixth Amendment right to “the genuine and effective representation of counsel” at the trial, on direct appeal, and at the first post conviction proceeding. With respect to the trial, the allegation was based on the trial attorney’s failure to request a jury instruction on alibi, failure to request an instruction that voluntary intoxication could reduce first degree murder to second degree murder, failure ¹³⁵ of trial counsel to object to hearsay testimony of certain witnesses, and failure of counsel to request an instruction on the defense of “diminished capacity.” The allegation that Curtis’s second attorney was inadequate was grounded upon that attorney’s failure at the first post conviction proceeding to raise the issue of previous counsel’s ineffectiveness. Also in the petition, Curtis, relying on Mullaney v. Wilbur, 421 U. S. 684 , 95 S. Ct. 1881 , 44 L.Ed.2d 508 (1975), complained of the instruction directing the jury to presume second degree murder from the occurrence of an unlawful homicide and placing the burden on Curtis to reduce the crime to manslaughter. The State moved to dismiss this second post conviction petition, maintaining that Curtis had waived these allegations for purposes of review under the Post Conviction Procedure Act, Art. 27, § 645A (c), by failing to raise the issues previously.

For purposes of ruling on the motion to dismiss, the circuit court accepted as true the following proffered facts: “1. ... “2. ... “3. The issue of ineffective assistance of counsel (trial counsel, counsel on direct appeal and counsel at petitioner’s first post-conviction hearing) has never been raised by petitioner in any prior court case. “4. Petitioner was never advised by trial counsel or by counsel appointed on his prior post-conviction case that petitioner should have raised the issue of ineffective assistance of counsel in his first post-conviction petition. “5. Petitioner was never advised that trial counsel may have been ineffective for his failure to raise the defense of voluntary intoxication as reducing the crime from first degree to second degree murder; nor was petitioner ever advised that trial counsel may have been ineffective for his failure to raise the issue of “diminished responsibility” or for his failure ¹³⁶ to raise on direct appeal the evidentiary issue dealing with the “double hearsay” testimony of Mary Wedge and Mildred Curtis. “6.

Petitioner is a layman with a seventh grade education and an I.Q. of 72 (borderline range of intelligence). Evidence had been introduced at petitioner’s trial that petitioner was a chronic alcoholic who had suffered some brain damage as a result of extended drinking for nineteen (19) years. Petitioner was not aware that he should have raised . the issue of ineffective assistance of counsel at his first post-conviction hearing. “7. Petitioner relied entirely on * his court-appointed counsel at trial, on direct appeal ... and in his first post-conviction case.

Petitioner would have raised the issue of ineffective assistance of counsel in his prior post-conviction case had petitioner known that there was a possible issue of ineffective assistance of counsel.” The circuit court granted the State’s motion to dismiss the petition. The court held that the matter of inadequacy of counsel had been waived because of Curtis’s failure to raise it at the first post conviction proceeding. Relief was also denied with regard to the matter of the homicide instructions in light of Mullaney v. Wilbur, supra, the court holding that the error in the jury instruction was cured by the return of a first degree murder verdict, 1 Curtis then filed an application for leave to appeal to the Court of Special Appeals, raising as the only matter the circuit court’s holding that he had waived the inadequacy of counsel allegations. He argued that mere failure to raise the inadequacy of counsel allegations before did not constitute a waiver; instead, he insisted that these allegations could only be deemed to be waived if he himself “could have made, but intelligently and knowingly failed to make, such allegation^]” 2 previously.

Moreover, Curtis maintained that ¹³⁷ the proffered facts, accepted by the circuit court for purpose of the motion to dismiss, established that there was no intelligent and knowing failure to make the allegations. 3 The Court of Special Appeals granted the application for leave to appeal and affirmed, Curtis v. State, 37 Md. App. 459 , 381 A. 2d 1166 (1977). The Court of Special Appeals held that the failure of the petitioner’s attorney at the first post conviction proceeding to raise the matter of trial counsel’s inadequacy resulted in a waiver. 4 In the view of the Court of Special Appeals, only if the representation by counsel at the first post conviction proceeding was constitutionally inadequate, or if there were “special circumstances,” would the matter of trial counsel’s inadequacy be considered. The Court of Special Appeals held that the representation by the attorney at the previous post conviction proceeding was not constitutionally inadequate and that the proffered facts did not amount to “special circumstances.” Consequently, the Court of Special Appeals refused to consider the issue of trial counsel’s inadequacy, deeming it waived because it was not raised at the first post conviction proceeding. Under the holding of the Court of Special Appeals, a waiver was found to exist even though, under the proffered facts accepted for purposes of the motion to dismiss, the defendant himself had not “intelligently and knowingly” failed to raise the question of trial counsel’s alleged inadequate representation.

The court flatly stated that such “intelligent and knowing” failure is not necessary, 37 Md. App. at 463 . Curtis then filed in this Court a petition for a writ of certiorari, arguing that the Court of Special Appeals had erroneously interpreted the post conviction procedure statute. Due to the importance of the question presented, we granted certiorari. ¹³⁸ II. The Maryland Post Conviction Procedure Act, Art. 27, § 645A, provides for and regulates the post conviction proceedings by certain persons who have been convicted of crimes.

Subsection (c) of § 645A deals with “waiver” as follows: “(c) When allegation of error deemed to have been waived. — For the purposes of this subtitle, 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 before trial, at trial, on direct appeal (whether or not said petitioner actually took such an appeal), in any habeas corpus or coram nobis proceeding actually instituted by said petitioner, in a prior petition under this subtitle, or in any other proceeding actually instituted by said petitioner, unless the failure to make such allegation shall be excused because of special circumstances. The burden of proving the existence of such special circumstances shall be upon the petitioner. “When an allegation of error could have been made by a petitioner before trial, at trial, on direct appeal (whether or not said petitioner actually took such an appeal), in any tfabeas corpus or coram nobis proceeding actually instituted by said petitioner, in a prior petition under this subtitle, or in any other proceeding actually instituted by said petitioner, but was not in fact so made, there shall be a rebuttable presumption that said petitioner intelligently and knowingly failed to make such allegation.” The State maintains, as the Court of Special Appeals held, that under the above language, the mere failure to raise an issue results in a presumption of waiver, and only a finding of “special circumstances” will rebut the presumption or alleviate the effect of the waiver. Moreover, the State argues that facts such as those proffered and accepted in this case, showing that petitioner did not “intelligently and knowingly” ¹³⁹ fail to previously raise the question of inadequacy of trial counsel, do not constitute “special circumstances” rebutting the presumption. This interpretation of § 645A (c) by the State and the Court of Special Appeals is manifestly erroneous.

The first paragraph of subsection (c) declares that, for purposes of the Post Conviction Procedure Act, “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” in a prior proceeding. The test for “waiver” which the Legislature contemplated was clearly the “intelligent and knowing” failure to raise, not the failure of counsel or an unknowing petitioner to raise an issue. The first paragraph of subsection (c) goes on to provide that where there is a knowing and intelligent failure to raise an issue previously, the failure “shall be excused because of special circumstances,” with the burden being upon petitioner to prove the existence of special circumstances. Thus, the matter of “special circumstances” only becomes pertinent where there is an intelligent and knowing failure of the petitioner to previously raise an issue.

Where the record affirmatively shows that there was not an intelligent and knowing failure to raise, there is nothing to “excuse,” and the presence or absence of “special circumstances” has no relevance. The second paragraph of subsection (c) provides that where an allegation of error could have been made by a petitioner previously, “but was not in fact so made, there shall be a rebuttable presumption that said petitioner intelligently and knowingly failed to make such allegation.” (Emphasis supplied.) The statute does not speak in terms of a conclusive presumption of waiver, absent special circumstances, as viewed by the State and the Court of Special Appeals. Rather, it is a presumption of an intelligent and knowing failure to have raised an issue, which failure can be rebutted by evidence or stipulated facts showing that petitioner did not “intelligently and knowingly” fail to raise the issue previously. The interpretation adopted by the State and the Court of ¹⁴⁰ Special Appeals virtually does away with the concept of “waiver” as an intelligent and knowing failure to raise an issue.

Not only is this interpretation of § 645A (c) contrary to the statutory language, but it is inconsistent with the opinions of this Court recognizing that the standard of “waiver” for purposes of the Act is whether “the petitioner himself ‘intelligently and knowingly’ failed to raise the issue” or, stated another way, whether he was previously “aware of and understood the possible defense,” Jourdan v. State, 275 Md. 495, 507 , 341 A. 2d 388 (1975). Accord, Washington v. Warden, 243 Md. 316, 321 , 220 A. 2d 607 (1966); Bristow v. State, 242 Md. 283 , 219 A. 2d 33 (1966). See also Wright v. State, 33 Md. App. 68 , 363 A. 2d 520 (1976), 5 In Washington v. Warden, supra, 243 Md. at 321-322 , the Court held that facts showing a lack of comprehension by petitioner adequately rebutted the presumption of an intelligent and knowing waiver. Moreover, the Washington case makes it clear that under the statute, the concept of a rebuttable presumption that a failure to raise an issue was intelligent and knowing, and the concept of “special circumstances” excusing an intelligent and knowing waiver, are separate and distinct matters.

Id. at 322 . In sum, with respect to those situations governed by the “waiver” standards of subsection (c), where the petitioner establishes that he did not in fact intelligently and knowingly fail to raise an issue previously, such issue cannot be deemed to have been waived. He need not, in addition, establish “special circumstances.” It is only where the petitioner in fact intelligently and knowingly failed to raise an issue, or where he is unable to rebut the presumption of an intelligent and knowing failure, that he must show “special circumstances” in order to excuse his failure. ¹⁴¹ III. On the other hand, the above holding is not necessarily dispositive of cases like the present one.

The foregoing principles may not govern every situation where there has been a failure to raise a matter previously. The pertinent question concerns the very scope or applicability of § 645A (c) itself. In other words, did the General Assembly, by use of the term “waiver” in the Post Conviction Procedure Act, intend that the definition of “waiver” set forth in subsection (c) determine in all cases the right to raise for the first time any issue in a post conviction action, regardless of the nature of prior procedural defaults, tactical decisions of counsel, or omissions of counsel? It has repeatedly been recognized that the word “waiver” itself is ambiguous, susceptible to numerous meanings depending upon the particular context in which it is used.

Speaking for the Supreme Court in Green v. United States, 355 U. S. 184, 191 , 78 S. Ct. 221 , 2 L.Ed.2d 199 (1957), Mr. Justice Black stated: “ ‘Waiver’ is a vague term used for a great variety of purposes, good and bad, in the law.” The inherently ambiguous nature of the word “waiver” was again recognized by the Supreme Court in Schneckloth v. Bustamonte, 412 U. S. 218, 245, 235 , 93 S. Ct. 2041 , 36 L.Ed.2d 854 (1973): “[T]here is no universal standard that must be applied in every situation where a person foregoes a constitutional right.” Commentators have also discussed the variable nature of the term. See Ralph S. Spritzer, Criminal Waiver, Procedural Default and the Burger Court, 126 Pa. L. Rev. 473, 475 (1978); George E. Dix, Waiver in Criminal Procedure: A Brief for More Careful Analysis, 55 Tex. L. Rev. 193 , 194 (1977).

In United States v. Chichester, 312 F. 2d 275, 281 (9th Cir. 1963), the United States Court of Appeals for the Ninth Circuit declared: “It has often been said that the term ‘waiver’ is a troublesome term in the law. ‘It is a flexible word, with no definite, and rigid meaning in the law, and, since it may be used in many senses, it is often of equivocal significance. While the term has various ¹⁴² meanings dependent upon the context, it is, nevertheless, capable of taking on a very definite meaning from the context in which it appears, and each case must be decided on the facts peculiar to it. As applied to the facts of cases, it is often difficult to determine what cases fall within a given definition and what without; and any satisfactory discussion of the term must consider all of its applications.’ ” See also, e.g., Merchants Ind. Corp. v. Eggleston, 37 N. J. 114, 179 A. 2d 505, 513 (1962); Roberts v. Roberts, 62 Wyo. 77 , 162 P. 2d 117, 121 (1945).

In view of the ambiguity associated with the term “waiver,” we do not feel compelled by the language of § 645A to apply the “intelligent and knowing” standard to all allegations made in post conviction actions. Any time a matter falls within the scope of § 645A (c), there is no doubt that the explicitly stated standard, “intelligent and knowing,” is applicable. However, it must be determined what type of situations the Legislature intended to be encompassed by subsection (c). In construing a statute, a court must consider the meaning and effect of statutory language in light of the objectives and purposes of the enactment.

State v. Fabritz, 276 Md. 416, 422 , 348 A. 2d 275 (1975), cert. denied, 425 U. S. 942 , 96 S. Ct. 1680 , 48 L.Ed.2d 185 (1976); Height v. State, 225 Md. 251, 257 , 170 A. 2d 212 (1961); Barnes v. State, 186 Md. 287, 291 , 47 A. 2d 50 , cert. denied, 329 U. S. 754 , 67 S. Ct. 95 , 91 L. Ed. 650 (1946). We have previously observed in Jourdan v. State, supra, and Bristow v. State, supra, that the legislative purpose of the Post Conviction Procedure Act, as amended by Ch. 442 of the Acts of 1965, was to adopt the concept of “waiver” set forth by the Supreme Court in cases like Johnson v. Zerbst, 304 U. S. 458, 464 , 58 S. Ct. 1019, 1023 , 82 L. Ed. 1461 , 146 A.L.R. 357 (1938), and Fay v. Noia, 372 U. S. 391, 439 , 83 S. Ct. 822 , 9 L.Ed.2d 837 (1963). Consequently, a review of the Supreme Court’s decisions in this regard would be instructive in ascertaining the legislative intent. Johnson v. Zerbst, supra, is generally regarded as the cornerstone regarding waiver of certain basic constitutional ¹⁴³ rights.

In that case, the defendant was tried and convicted without the assistance of counsel on charges of uttering and possession of counterfeit money. In discussing whether there had been a waiver of the Sixth Amendment right to counsel, the Court said ( 304 U. S. at 464 , emphasis supplied): “It has been pointed out that ‘courts indulge every reasonable presumption against waiver’ of fundamental constitutional rights and that we ‘do not presume acquiescence in the loss of fundamental rights.’ A waiver is ordinarily an intelligent relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” The strictness of the Johnson v. Zerbst standard was underscored by the Court in Carnley v. Cochran, 369