DeVaughn v. Warden of Maryland Penitentiary

Hammond, J., delivered the opinion of the Court. Edward Everett DeVaughn was convicted of first degree murder and was sentenced to the Maryland Penitentiary for life. His conviction was affirmed in DeVaughn v. State, 232 Md. 447 , cert, denied, 376 U. S. 927 , 11 L. Ed. 2d 623 . DeVaughn then filed a petition for post conviction relief, a lawyer was appointed to represent him, and a hearing was held before Judge Sklar in open court at which time petitioner testified.

After considering the petitioner’s numerous contentions, Judge Sklar denied relief and petitioner has applied for leave to appeal. We agree that the application should be denied. Judge Sklar’s opinion was filed on March 15, 1965, and the amendments to the Uniform Post Conviction Procedure Act (which took effect June 1, 1965, and are presently found in Code (1965 Supp.), Art. 27, § 645A-J), were not in effect so that the petition must be considered under the former statutes and the cases which have interpreted it. Williams v. Warden, 240 Md. 205 .

Petitioner contends: (1) That he received an unlawful conviction and sentence. If this claim relates to a violation of any constitutional right, it is far too vague to warrant relief, Slater v. Warden, 233 Md. 609 , Reeves v. Warden, 231 Md. 613 , and if it relates to- the sufficiency and weight of the evidence, it is not a ground for post conviction relief, Young v. Warden, 233 Md. 596 , especially since the issue has been fully considered and finally determined by this Court in petitioner’s direct appeal, DeVaughn v. State, supra. Husk v. Warden, 240 Md. 353 . (2) That the prosecuting witness committed perjury.

No relief can be given on the basis of such a contention since there is no showing that the State participated in the use of the alleged perjured testimony. Husk v. Warden, supra. (3) That the indictment was faulty in that it did not correctly state the name of the victim and therefore petitioner was ⁴¹⁴ not properly appraised of whom he was accused of murdering and the autopsy report admitted into evidence was invalid “in that it was not about the deceased.” In his opinion, Judge Sklar cited testimony at the original trial which reveals that the court and defense counsel were aware of a typographical error on the autopsy report and that trial counsel affirmatively waived any objection to this inconsequential mistake. (4) That the State failed to read any indictment to the trial court or the petitioner in presenting its case for trial.

In his opinion, Judge Sklar states that an examination of the transcript contradicts this contention and finds that the indictment was read in its entirety at the arraignment of the petitioner and at the trial he was again presented with the indictment. (5) That the trial court failed to acknowledge the answer of the petitioner as to whether he would accept a trial by judge or jury. Even assuming that petitioner asked for a trial by jury, it is clear that this contention cannot be raised on post conviction since it was not raised on appeal. Williams v. Warden, supra.

(6) That a statement made by petitioner prior to trial was read into evidence without being presented to the defendant or his