Estep v. State

Gilbert, J., delivered the opinion of the Court. George Samuel Estep, Jr., Melvin Leon Marshall and John Francis Marshall, appellants, were convicted of rape by a jury in Charles County, presided over by Judges Philip H. Dorsey, Jr. and James C. Mitchell. The jury’s verdict was “* * * guilty on the first count without capital punishment as to each of the defendants.” Estep received a sentence of 18 years imprisonment. Both Marshalls received 15 year terms.

The appellants assign as error the following: “I. Were the rights of the Defendants violated un ⁵⁶ der the Fourteenth Amendment to the Federal Constitution and under the Uniform Extradition Law as passed by the Maryland Legislature when the Defendants were extradited from the District of Columbia without a hearing and brought to Maryland for the arraignment on July 27, 1970 and when brought to trial on November 5, 1970?

II

Were the rights of the Defendants violated when they were arrested on March 13 and 14, 1970, removed to the District of Columbia and confined in the District of Columbia while they were being charged in Maryland with Rape and were not appointed counsel until July 27, 1970? 1 III. Were the rights of the Defendants violated when one attorney was assigned to represent three defendants and there was a conflict of interest in the defense of the defendants that prevented the attorney from properly cross-examining?

IV

Did the court err in allowing the husband of * * * [the prosecutrix] to testify as to statements which she gave her husband at the time that she arrived at her home quite sometime after the alleged occurrence and quite sometime after she was let out of the vehicle by the Defendants? V. Were the Defendants prejudiced when the Court allowed the State to cross-examine the defendant, Melvin Leon Marshall, concerning prior inconsistent statements ?

VI

Did the Court err in not granting the Defendants’ motion for acquittal or when the jury decided against the weight of the evidence?

VII

Were the Defendants prejudiced by having an unfair lineup in the District of Columbia and allowing the evidence in the trial? ⁵⁷ VIII. Were the rights of the Defendants prejudiced when the defense attorneys were misled into believing that there were no prior statements or inconsistent statements made by the Defendants ?

IX

Did the Court err in not granting a mistrial as requested by Attorney Bowling?” THE FACTS The prosecutrix testified that on the night of March 12, 1970, she had just parked her automobile on the parking lot adjacent to her apartment house located in the District of Columbia, and was walking toward her apartment when she was approached by an armed man who told her not to scream. The armed person was joined by three others, and the four of them, along with the prosecutrix, entered a motor vehicle. After the men took from the prosecutrix her wallet and car keys they proceeded to drive a short distance to where the prosecutrix had parked her automobile. All of the persons, including the prosecutrix, then transferred from the vehicle into the automobile of the prosecutrix.

She was placed in the back seat and the car was then driven to a gasoline station. The prosecutrix stated that a gun was pointed toward her at all times and she was told to keep her head away from the window. The vehicle was at the gasoline station for approximately five minutes. After departing from the service station, the automobile was driven to a wooded area in Maryland where the prosecutrix was instructed to remove her clothing.

She was then advised that if she complied with her abductors’ request that no harm would come to her or her children. The prosecutrix was ravished on the back seat of the car by two of the men who had abducted her. After sexual relations with those two had been completed, she was then removed from the vehicle and compelled to submit to the other two men on a blanket that was placed on the ground near the car. Following the multiple rapes, the prosecutrix was ordered to dress and all returned to the vehicle and drove ⁵⁸ away.

Five or ten minutes later, at the' suggestion of one of her assailants, 2 the vehicle returned to the place where the rapes had occurred and the prosecutrix was again compelled to submit to sexual relations with each of her abductors. The prosecutrix was then taken to an alley in the District of Columbia where she was put out of the car with the admonition that if she revealed what had occurred she and her children would be killed. She hailed a cab and went immediately to her apartment where she told her husband what had transpired. The police were called.

The prosecutrix was subsequently shown a series of photographs from which she picked the appellants and another. All four men were arrested in Charles County on March 13 and 14 and were then taken to the District of Columbia. 3 The prosecutrix again identified the appellants and the other male on April 13, 1970 in a lineup in the District of Columbia. She further made an in-court identification of the appellants and the other person at the time of the trial. The appellants’ version of the facts was somewhat different.

Estep admitted to sexual relations with the prosecutrix, but stated that he had been dating her from the middle of February and that he met her on the parking lot by prearrangement. Both of the Marshalls denied any sexual relationship with the prosecutrix. All three appellants agreed that the fourth youth was not with them on the night of March 12. I On September 11, 1970, the appellants, Estep and John Francis Marshall, filed a motion in the trial court to dismiss the indictments against them on the ground that they were not properly extradited.

No such motion was filed as to Melvin Leon Marshall, and we do not here consider the appellants’ first point as to him. Rule 1085. ⁵⁹ The issue raised by Estep and John Francis Marshall was decided by this Court in Wilkins v. State, 4 Md. App. 334 , 242 A. 2d 808 (1968), and Wilkins v. State, 5 Md. App. 8 , 245 A. 2d 80 (1968). In Wilkins, 4 Md. App. 334 , Wilkins, who had been serving a 5 to 15 year sentence in the District of Columbia Correctional Institute at Lorton, Virginia, was brought to Maryland for trial under a writ of Habeas Corpus Ad Prosequendum. He argued that inasmuch as both Maryland and the District of Columbia had enacted the Uniform Criminal Extradition Act (Maryland Code Article 41, §§ 16 to 43), the Maryland court lacked jurisdiction over him.

As was made vividly clear in the first Wilkins case, such an argument ignores the dictates of Article 41, § 40 of the Maryland Code, which provides: “Nothing in this subtitle contained shall be deemed to constitute a waiver by this State of its right, power or privilege to try such demanded person for crime committed in this State, or of its right, power or privilege to regain custody of such person by extradition proceedings or otherwise for the purpose of trial, sentence or punishment for any crime committed within this State, nor shall any proceedings had under this subtitle which result in, or fail to result in, extradition be deemed a waiver by this State of any of its rights, privileges or jurisdiction in any way whatsoever.” In the instant case, the appellants were likewise detained in the District of Columbia Correctional Institute, and the argument herein advanced by them is identical to that utilized by Wilkins in both of his appeals. We adopt the language of Judge Anderson in Wilkins v. State, 5 Md. App. 8 , 245 A. 2d 80 (1968) : “This contention is devoid of merit. A Federal prisoner, under § 4085 of Title 18, U.S.C.A., may be taken into a State court for trial with ⁶⁰ the consent of the Attorney General of the United States, and his production is wholly a matter for the Attorney General to determine; Marsino v. Higgins, 10 F. 2d 534 , affirmed 270 U. S. 627 , and the prisoner may not complain, Chapman v. Scott, 10 F. 2d 156 , affirmed 10 F. 2d 690 , cert. denied, 270 U. S. 657 ; Troyan v. United States, 240 F. Supp. 383 . Even in the absence of statute, the Attorney General has the authority to transfer a Federal prisoner to a State court for trial as a matter of comity between sovereigns.

Ponzi v. Fessenden, 258 U. S. 254, 261 , 42 S. Ct. 309 , 66 L. Ed. 607 ; State v. White, 264 P. 647 .” II Appellants’ second argument attempts to equate their incarceration in the District of Columbia Correctional Institute 4 with a preliminary hearing. They argue that Coleman v. Alabama, 399 U. S. 1 , 90 S. Ct. 1999 , 26 L.Ed.2d 387 (1970) and Kochel v. State, 10 Md. App. 11 , 267 A. 2d 755 (1970) constitutionally mandate the presence of counsel at all critical stages of criminal proceedings. Coleman and Kochel hold that a preliminary hearing is a “critical stage” requiring the appointment of counsel in all such hearings arising on and after June 22, 1970. The holding in Coleman , however, is not to be applied retroactively and is inapplicable to those preliminary hearings which occurred prior to June 22, 1970.

Kochel v. State, supra. Even if we were to assume, which we do not, that incarceration while awaiting indictment is a critical stage requiring the presence of counsel, we cannot ignore, as appellants chose to do, that Coleman is not to be applied in retrospect and that no counsel would have been required from the date of their apprehension on ⁶¹ March 13 and 14, 1970 until June 22, 1970, the date Coleman was decided. Appellants are apparently seeking to have this Court enunciate a rule that counsel must be present at all stages following arrest. They contend that not having counsel appointed until July deprived them of their right to have their attorney “make a proper investigation of people then in the neighborhood” and that the appointment of counsel four months after their arrest further deprived them of “proper preparation for trial.” We know of no authority that supports the appellants’ position that defendants in criminal matters are entitled to counsel from the time of arrest. 5 An arrest is an “initial stage” insofar as the person apprehended is concerned because it may trigger the criminal trial procedure.

Nevertheless, it is not a “critical stage” as that term is applied in Coleman, supra. Furthermore, there is nothing in the record to indicate that trial counsel was requested to interview witnesses, obtain statements or preserve evidence necessary for the preparation of the trial. The converse of the appellants’ contention appears more readily to be true in that counsel for Estep had summoned a witness at the request of the appellant Estep who was supposed to testify that he had seen Estep and the prosecutrix together previously. However, the “witness” advised counsel that he could not “* * * take the stand and state under oath positively that she is "the woman * * *.” Counsel stated that the appellants had furnished him with the names of no other persons who could identify the prosecutrix as having been with Estep on previous occasions.

Appellants make the further assertion that had counsel been appointed immediately he could have ascertained the veracity vel non of whether the Moonlight ⁶² Inn, located in Waldorf, Maryland, and where the appellants state they had taken the prosecutrix, was open on the night of March 12, 1970. We know of no reason why this information could not have been obtained at any time prior to trial. The only testimony as to the Inn’s being closed on March 12, 1970 was from a State’s witness who said he was not certain. The jury was instructed to disregard the witness’ testimony.

Therefore, the only evidence before the jury as to the Moonlight Inn’s being open was from the appellants and was uncontradicted. Appellants rely upon Chandler v. Fretag, 348 U. S. 3 , 75 S. Ct. 1 , 99 L. Ed. 4 (1954). There Chandler, a middle age man of little education, was indicted in Tennessee for house breaking and larceny. The offenses were punishable by a term of 3 to 10 years.

The indictment charged Chandler with breaking and entering a place of business and stealing therefrom chattels of the value of $3.00. Following his arrest, Chandler was released on bail. When the case was called for trial Chandler appeared, absent counsel, and pleaded guilty. He believed “that an attorney could do him no good on said charge.” He was advised by the trial judge that he, Chandler, was also being charged as an habitual offender.

Under the provisions of the Tennessee law, conviction as an habitual offender mandated life imprisonment without any possibility of parole. Chandler immediately requested a continuance to obtain counsel, but the trial judge denied the request. A plea of guilty was entered to the house breaking and larceny charges and the State offered evidence to corroborate the plea. At the conclusion of the trial, the judge asked the jury to “raise their right hands if they accepted petitioner’s guilty plea on the house breaking and larceny charge and if they approved of a three-year sentence on that charge.” Each of the jurors raised his right hand.

The judge then instructed the jury to raise their right hands a second time if “they found petitioner to be an habitual criminal.” Again the jury indicated their unanimous finding by raising their right hands. The jury never left the jury box to consider the case ⁶³ and the entire proceedings consumed between 5 and 10 minutes. Subsequently Chandler attacked his conviction and the matter reached the Supreme Court. Chief Justice Warren, speaking for a unanimous court, reversed the conviction.

The Chief Justice quoted from Powell v. Alabama, 287 U. S. 45, 71 , 53 S. Ct. 55 , 77 L. Ed. 158, 171 , 84 A.L.R. 527 , where it was said: “What, then, does a hearing include? Historically and in practice, in our country at least, it has always included the right to the aid of counsel when desired and provided by the party asserting the right. The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law.

If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one.

He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such ⁶⁴ a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense.” The Chief Justice continued: “A necessary corollary is that a defendant must be given a reasonable opportunity to employ and consult with counsel; otherwise, the right to be heard by counsel would be of little worth.” [Citations omitted].

Appellants seize upon the sentence, “He requires the guiding hand of counsel at every step in the proceedings against him” to bolster their argument, that they were entitled to counsel from the time of their arrest. The key word in that sentence, however, is the word “proceedings”. “Proceeding” is defined by Black’s Law Dictionary, Third Edition, to mean: “In a general sense, the form find manner of conducting juridical business before a court or judicial officer; regular and orderly progress in form of law; including all possible steps in an action from its commencement to the execution of judgment.” The Supreme Court has held that an accused is entitled to counsel at “critical stages” of the criminal proceedings. Coleman v. Alabama, supra. Thus, the right to presence of counsel has been mandated at lineups, United States v. Wade, 388 U. S. 218 , 87 S. Ct. 1926 , 18 L.Ed.2d 1149 (1967) ; Gilbert v. California, 388 U. S. 263 , 87 S. Ct. 1951 , 18 L.Ed.2d 1178 (1967) ; at a preliminary hearing, Coleman v. Alabama, supra; during the course of the trial, Powell v. Alabama, supra.

We think appellants misconstrue Chandler v. Fretag, supra. The Supreme Court has not required the presence of counsel from the moment of arrest and we decline to do so because, in our view, an arrest is not within the ambit of Coleman, Wade, Gilbert, Hamilton nor Powell . ⁶⁵ III Appellants’ third contention is totally devoid of merit. They assert that there was a conflict of interest in that trial counsel defended Estep, John Francis Marshall, 6 and the individual to whom a new trial had been granted. According to appellants, the conflict arose because the fourth defendant testified that he was not with the appellants at any time on the evening in question.

Each of the appellants in turn admitted that this was true. Appellants perceive a conflict of such magnitude that “the assigned counsel could not properly defend each of his clients because he was prevented from cross-examining the others.” We are unable to ascertain the existence of any conflict of interest. “* * * Some conflict of interest must be shown before it can be claimed that representation by an attorney also engaged by another defendant deprived him of his right to the effective assistance of counsel. * * *” Davenport v. State, 7 Md. App. 89, 96 , 253 A. 2d 768 (1969). In Pressley v. State, 220 Md. 558, 562 , 155 A. 2d 494 (1959), it was held that, “To show prejudice there must be revealed an actual or imminently potential conflict of interest which prevented the lawyer from impartially and adequately representing his clients.” If two defendants state that a third defendant was not present at the scene of the crime and the third defendant says he was not present at the scene of the crime, there