Curtis v. State

Moylan, J., delivered the opinion of the Court. The appellant, Ottway Leon Curtis, Sr., is presently appealing from the granting by Judges James F. Couch, Jr. and Robert J. Woods, in the Circuit Court for Prince George’s County, of the State’s Motion to Dismiss his second Post Conviction Petition. The appellant was initially convicted on September 14, 1967, in the Circuit Court for Prince George’s County of murder in the first degree. That conviction was appealed and we affirmed it in Curtis v. State, 4 Md. App. 499 , 243 A. 2d 656 .

Certiorari was subsequently denied by the Court of Appeals on January 19, 1969. The appellant then petitioned for post conviction relief and that petition was denied on May 28, 1970. In an unreported per curiam opinion, we denied leave to appeal. The present and second petition under the Uniform Post Conviction Procedure Act was filed in Prince George’s County on March 29, 1976.

In it, the appellant raised as issues the ineffective assistance of counsel both at his original trial and upon his direct appeal to this Court from ⁴⁶¹ the trial court’s verdict. The State filed a Motion to Dismiss the Amended Petition on the grounds that the issue had been waived by virtue of not having been raised in the course of the first Post Conviction Petition. The appellant filed an Opposition to the Motion to Dismiss, claiming therein that he had received ineffective assistance of counsel at his first post conviction hearing and that this, coupled with his own intellectual inadequacies, constituted the “special circumstances” explaining why he had not raised the issue on the earlier occasion. After a hearing in open court on August 23, 1976, Judges Couch and Woods granted the State’s Motion to Dismiss.

The appellant filed a timely Application for Leave to Appeal from that judgment and on November 8, 1976, we ordered the'case transferred to the regular appeal docket. The controlling law for present purposes is Article 27, §645A: “Right of appeal of convicted persons,” which reads, in pertinent part: “(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 habeas corpus or coram nobis proceeding actually instituted by said ⁴⁶² 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” (Emphasis supplied) We hold that the hearing judges were correct in granting the State’s Motion to Dismiss.

Even if the evidence as to the waiver of the contention were equivocal, which we are not suggesting, the statute places the burden of proof squarely upon the appellant. We hold that he did not show such “special circumstances” as would excuse him from his failure to raise the allegation of error in his first Post Conviction Petition. Similarly, we hold that the appellant did not adequately rebut the presumption that he “intelligently and knowingly failed to make such allegation” in the earlier petition. In coming to grips with a contention such as that now before us, there is involved not simply the literal state of the law, which works against the apppellant, but also policy considerations of deeper import.

The appellant was initially afforded a trial in the Criminal Court, then an appeal to this Court, then a Petition for Certiorari to the Court of Appeals, then a hearing on his first Post Conviction Petition and then an application for leave to appeal to this Court from the denial of that petition. To insert yet a sixth or a seventh screen into the criminal process in an effort to catch even the remotest possibility of arguable error is to pass far beyond the point of diminishing returns. The pervasive complaint about the criminal justice system as it exists today is that there is no finality. The salutary purpose of the Uniform Post Conviction Procedure Act is to consolidate all possible allegations of error and to dispose of them in a single hearing.

Lightly to erode that purpose is, in our judgment, to do a great disservice to our law in the larger sense. Whether couched in terms of “special circumstances” or in terms of the lack of “a knowing and intelligent waiver,” the ⁴⁶³ appellant is pushing upon us the same facts. He urges upon us his seventh-grade education, his IQ of 72, his lack of legal training and his history of alcoholism as demonstrating that he needed the effective assistance of counsel. There is no quarrel with that premise as far as it goes.

From this, he advances the further proposition that the mere failure of counsel in the first Post Conviction Petition to raise the issue of ineffective assistance of trial counsel is, ipso facto, such ineffective assistance at the post conviction level as to constitute a “special circumstance” and to fend off the otherwise foreclosing effect of waiver. We cannot buy that proposition. Almost every petitioner under the Uniform Post Conviction Procedure Act is a layman, untrained in the law, who needs the effective assistance of counsel. The logical extension that would follow from this appellant’s present contention would be that convicted prisoners could continue to raise endless allegations of error in endless petitions, simply because earlier counsel upon earlier petitions had not thought to advise them as to the possibility of such contentions.

The effort of the law to achieve some finality would be totally sabotaged. What the appellant urges upon us is a paradox: The failure to raise a contention at the earliest possible opportunity constitutes a waiver of that contention, but the failure of counsel to urge the contention constitutes, by definition, ineffective assistance of counsel so as to negate the waiver. The striving for finality is stillborn. In stating the case most fully against the appellant, ironically we do indirectly what we are relieved of all necessity of doing directly — reviewing at least summarily the effective assistance of counsel at earlier stages.

We look first to the assistance of counsel rendered at the first Post Conviction Petition hearing. It is a truism that as a basis for post conviction petition review, only errors relating to the validity of the original judgment are properly cognizable. Cf. Creswell v. Director, 2 Md. App. 142, 233 A. 2d 375 ; Robinson v. Director, 3 Md. App. 222 , 238 A. 2d 124 .

The effective assistance of counsel at the post conviction level is not an issue in and of itself, but it may be at least an aspect of the ⁴⁶⁴ collateral issue of whether the failure to raise a contention at that level constitutes a waiver of that contention. In his first Post Conviction Petition, the appellant, with the assistance of counsel, raised four issues, which are unnecessary to recite here. Although we denied leave to appeal, the issues raised were arguable and were well argued. We perceive no evidence of ineffectiveness upon the part of that counsel.

To agree with the appellant here would be to hold that the failure of that counsel to raise at that time the contention that trial counsel had been ineffective was itself ineffectiveness per se. We decline to do so, for that would totally subvert §645A. We note, moreover, that from the vantage point of that . Post Conviction Petition counsel looking back at the direct appeal and beyond that back to the original trial, there was no good reason to raise the issue of ineffectiveness of earlier counsel.

In the first place, the issue, by definition, does not apply to the appellate stage but only to the trial stage. Even at the trial stage, trial counsel attempted resourcefully to defend against the murder charge on the very pertinent grounds of insanity. That he focused his defense on that area and did not 1) anticipate Mullaney v. Wilbur, 421 U. S. 684 , 95 S. Ct. 1881 , 44 L.Ed.2d 508 (1975), as most did not, and 2) argue a “diminished responsibility” theory that has never been accepted in Maryland law did not constitute ineffective assistance of counsel. The applicable standard in this regard was well set out by State v. Merchant, 10 Md. App. 545, 551 , 271 A. 2d 752 : “Mere errors in trial tactics are not sufficient to constitute incompetency of counsel.

Hall v. Warden, 224 Md. 662, 665 ; Gullion v. Warden, 3 Md. App. 263, 265 ; Henry v. Mississippi, 379 U. S. 443 , 13 L.Ed.2d 408 . Furthermore, failure to raise an available defense at trial does not, in itself, constitute incompetency of counsel. Annotation at 74 A.L.R.2d 1390 ,1449.” Perceiving no ineffectiveness at the trial state, the post conviction, stage attorney had no reason to suggest ineffective assistance as a ground for post conviction relief. ⁴⁶⁵ A parting word is in order on the subject of the word “waiver.” The appellant leans heavily upon the language of Johnson v. Zerbst, 304 U. S. 458, 464 , 58 S. Ct. 1019, 1023 , 82 L. Ed. 1461 (1938), which recites that: “ ‘[C]ourts 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 intentional relinquishment or abandonment of a known right or privilege.” Part and parcel of this principle is usually the follow-up recitation from Camley v. Cochran, 369 U. S. 506, 516 , 82 S. Ct. 884 , 8 L.Ed.2d 70 (1962), which states that: “Presuming waiver from a silent record is impermissible.” Initially, it must be noticed that waiver is not a single, monolithic phenomenon. Pertinent is our observation in Miller v. Warden, 16 Md. App. 614, 615 , 299 A. 2d 862 : “The only thing that can be said about constitutional waiver in the abstract is that nothing can be said about constitutional waiver in the abstract.

It is as protean in its manifestations as the number of constitutional rights which there are to be waived multiplied by the number of circumstances in which they may be waived. It is unnecessary in deciding the case before us to attempt to analyze this shifting quality of waiver in its manifold contexts. Even a partial cataloguing of its applications illustrates the breadth of the spectrum through which it vacillates — operating at times with fastidious forbearance, at times blithely and summarily, and frequently with coquettish inconstancy.” Neither is “the effective assistance of counsel” a single, monolithic phenomenon. When it comes to a waiver of the total package — the very presence of a lawyer at one’s side ⁴⁶⁶ during the course of a trial — the rigid Johnson v. Zerbst waiver standard is appropriate and waiver, quite properly, never will be presumed from a silent record.

The Sixth Amendment ¡right to the assistance of counsel at other “critical stages,” however, shades off gradually in terms of our reluctance to presume waiver either from the actions of the accused or from his complete inaction. An accused has the right to the assistance of counsel during the course of a custodial interrogation. Miranda v. Arizona, 384 U. S. 436 , 86 S. Ct. 1602 , 16 L.Ed.2d 694 (1966). He must be informed of that right.

Once having been informed, however, his waiver of it is implicit in a prima facie showing that a subsequent confession was freely and voluntarily made. Barnhart v. State, 5 Md. App. 222 , 246 A. 2d 280 . An accused has the right to the assistance of counsel when he is placed in a police lineup. United States v. Wade, 388 U. S. 218 , 87 S. Ct. 1926 , 18 L.Ed.2d 1149 (1967).

Yet a denial of that right will avail him naught, if he fails to object at trial either to direct evidence of that lineup identification or to a courtroom identification possibly stemming from that lineup identification. Smith and Samuels v. State, 6 Md. App. 59 , 250 A. 2d 285 . Although the waiver of the total package, the very presence of a lawyer at one’s side during trial, will not be presumed from a silent record, it by no means follows that the waiver of lesser, constituent elements that go into that totality may not be presumed from a silent record. Even when dealing with Sixth Amendment constitutional rights, we said in Miller v. Warden, supra, at 16 Md. App. 618 -620: “In the area of Sixth Amendment protections, it cannot seriously be maintained that a lawyer’s ‘waiving of the reading of the indictment’ will not bind his client in terms of the right ‘to be informed of the nature and cause of the accusation.’ Nor can it be maintained that the right to ‘an impartial jury’ requires an affirmative explanation of the right to ask for a change of venue, the right to challenge the array, the right to propound certain ⁴⁶⁷ voir dire questions, the right to challenge for cause and the right to exercise peremptory challenges followed by an express waiver of such rights from the mouth of the accused.

The Sixth Amendment right of confrontation reveals the sliding scale between the degree to which a right is waived and the degree of waiver required at its most volatile. In Brookhart v. Janis, 384 U. S. 1 , 86 S. Ct. 1245 , 16 L.Ed.2d 314 , the agreement, by counsel, that ‘he would not contest the State’s case or cross-examine its witnesses but would require only that the State prove’ a prima facie case, was deemed to be tantamount to a plea of guilty and the rigid waiver standards of Johnson v. Zerbst were observed. There a blanket waiver of all cross-examination of all witnesses was involved. A far lesser question, if not in kind at least in degree, would obviously be presented where a defense attorney agrees to stipulate to the testimony of a single minor or non-controversial witness.

Sound trial tactics frequently dictate the acceptance by way of stipulation' of a post-mortem autopsy protocol, a ballistics report, a chemist’s analysis of suspected drugs, and other reports from the local and national crime laboratories, rather than requiring the experts who conducted the tests to appear in court. Each of these stipulations involves, to be sure, a waiver of the right of confrontation, but of a type frequently indulged in throughout a trial. The right to cross-examine a witness is an integral part of the right of confrontation. Pointer v. Texas, 380 U. S. 400 , 85 S. Ct. 1065 , 13 L.Ed.2d 923 .

The remarks of Judge Thompson in Zimmerman v. State, 9 Md. App. 488, 498 , 265 A. 2d 764, 771 (dissenting opinion), are appropriate here: ‘An accused has a federal constitutional right to cross-examine witnesses against him, Bruton v. United States, 391 U. S. ⁴⁶⁸ 123, 88 S. Ct.