Domneys v. Warden

Per Curiam. The petitioner, Frank Oliver Domneys, was convicted of rape by a jury without a recommendation against capital punishment and, following the denial of a motion for a new trial, was sentenced to death by the Criminal Court of Baltimore on July 3, 1961. On direct appeal, the judgment and sentence was affirmed by this Court in Domneys v. State, 229 Md. 388 , 182 A. 2d 880 (1962). The first application for leave to appeal from the order of the trial court denying him post conviction relief was denied by this Court in Domneys v. Warden, 232 Md. 659 , 194 A. 2d 443 (1963), cert. den. 377 U. S. 949 (1964).

In this second application for leave to appeal from the denial of post conviction relief, the petitioner, as a result of the decision in Schowgurow v. State, 240 Md. 121 , 213 A. 2d 475 (1965), contends in substance: (1) that he was indicted by an ⁶⁵¹ unconstitutionally formed grand jury and found guilty without a recommendation against capital punishment by an illegally constituted petit jury; (2) that notwithstanding the status of the judgment and conviction at the time Schowgurow was decided on October 11, 1965, he is entitled to the relief afforded by that decision; (3) that the failure of the illegally constituted petit jury to make a recommendation against capital punishment caused him tO' suffer a peculiar bias when compared to a defendant in a noncapital case; and (4) that his conviction was not finally adjudicated. At the hearing below, the petitioner neither claimed nor showed any actual prejudice to himself as a result of the exclusion of nonbelievers in God from the grand jury which indicted him and the petit jury which convicted him. After argument, Judge Sodaro, in the order denying relief, found, as to the first contention, that the conviction of the petitioner became final three years before Schowgurow was decided; dismissed the second contention because capital cases are no exception to the nonretroactivity of Schowgurow ; found that the third contention was without merit after pointing out that the “objection to the ‘illegally constituted’ jury which convicted him and rendered a verdict without a recommendation against capital punishment has been classified as ‘technical’ in nature and not one