Davis v. State

Morton, J., delivered the opinion of the Court. Appellant, Lorenzo Davis, Jr., was convicted by a jury in the Criminal Court of Baltimore (Carter, J.) on July 15, 1966, on charges of armed robbery and. assault with intent to murder. Subsequently, he received consecutive sentences totalling fifty years. His convictions were affirmed by this Court in an unreported opinion, No. 311, September Term, 1967, filed July 2, 1968.

Davis filed a petition for post conviction relief on October 19,1977, pursuant to which a hearing was held in the Criminal Court of Baltimore (Greenfeld, J.). The hearing judge denied relief and this Court granted Davis leave to appeal from that decision. The case was transferred to our regular docket, briefs were filed and oral arguments of counsel were received. Appellant raised a defense of alibi at this trial twelve years ago.

On that issue the trial judge instructed the jury in the following manner: “If the jury considering all the evidence, inculpatory and exculpatory, entertain a reasonable doubt of the defendant’s participation in the crime, they should acquit him. Thus a defendant is entitled to acquittal if. the alibi testimony, taken into consideration with all the other evidence in the case, raises a reasonable ⁴⁶⁹ doubt of guilt. But, in order to prove an alibi conclusively the testimony must cover the whole time in which the crime by any possibility might have been committed and it should be rigid, it should be subjected to rigid scrutiny.” (Emphasis added.) As Judge Greenfeld properly pointed out, the last sentence in the above-quoted instruction is “virtually identical” to the language which State v. Grady, 276 Md. 178 (1975) held to be defective as placing an impermissible burden of proof on the defendant. Accordingly, as the hearing judge noted, the issue is whether an erroneous alibi instruction, not objected to at trial, may now afford appellant a basis for post conviction relief.

Appellant challenges the denial of relief on three grounds. First, he seeks to invoke the aid of Code, art. 27, § 645A (d), which provides: “ * * * no allegation of error shall be deemed to have been finally litigated or waived where, subsequent to any decision upon the merits thereof or subsequent to any proceeding in which said allegation otherwise may have been waived, any court whose decisions are binding upon the lower courts of this State holds that the Constitution of the United States or of Maryland imposes upon State criminal proceedings a procedural or substantive standard not theretofore recognized, which such standard is intended to be applied retrospectively and would thereby affect the validity of the petitioner’s conviction or sentence.” (Emphasis added.) Appellant argues that Grady overruled existing Maryland law with respect to the alibi defense. We conclude, however, that his reliance on Grady is misplaced. Grady acknowledged that an alibi instruction which seemed to place the burden of proof on the defendant violated the dictates of In Re Winship, 397 U. S. 358 (1970), as extended ⁴⁷⁰ and clarified by Mullaney v. Wilbur, 421 U. S. 684 (1975). 1 The Court of Appeals in Grady , however, also made it clear that the principle that “it is incumbent upon the State to prove a defendant’s guilt beyond a reasonable doubt” was already “well established by the many decisions of this Court.” (Citations omitted.) Grady, supra, at 181 .

While the instruction in Grady , as in the present case, was apparently based on dicta contained in Floyd v. State, 205 Md. 573 (1954), the Court observed that such an instruction was an “erroneous interpretation” of Floyd . 2 Grady, supra, at 183-84 . For these reasons, we reject appellant’s contention that Grady created “new law” within the meaning of § 645A (d), since the relief provided by that section is triggered only when a standard “not previously recognized” is imposed upon the State’s trial courts. Here, the standard in question, that the State must prove every element of the alleged crime beyond a reasonable doubt, has “long been in effect in Maryland.” Id. at 182. Davis argues next that even if he is not entitled to relief under § 645A (d), he is, nonetheless, entitled to a new trial under § 645A (c) on the ground that he did not “intelligently and knowingly” waive his right to object to the faulty alibi instruction.

His only claims