Ferrell v. Warden of the Maryland Penitentiary

Barnes, J., delivered the opinion of the Court. The applicant, Francis Allen Ferrell, was convicted on May 14, 1963 by a jury verdict in the Circuit Court for Montgomery County. He was found guilty of assault with intent to murder. A motion for a new trial was denied and the applicant was sentenced by Judge Moorman on May 22, 1963 to seven years in the Maryland Penitentiary.

The conviction was appealed and affirmed in Ferrell v. State, 234 Md. 355 , 199 A. 2d 362 (1964). Thereafter, the applicant filed a petition for relief under the Uniform Post Conviction Procedure Act. Relief was denied in a memorandum opinion and order filed on September 27, 1965 by Judge Ralph G. Shure. This application for leave to appeal followed.

The applicant, by court appointed counsel, raised the following contentions at his post conviction hearing in the lower court : 1) that he was held incommunicado for two days by the police, his repeated requests for counsel were denied, he was interrogated and a statement was elicited from him and used against him at his trial; 2) that perjured testimony was used at his trial; and 3) that he was denied procedural due process because, he claims, no preliminary hearing was held. The applicant has not complied with Maryland Rule BK 46 b in that he failed to state any reasons why Judge Shure’s order should be reversed or modified. The application can be dismissed, therefore, on that ground. Thompson v. Warden, 237 Md. 655 , 207 A. 2d 498 (1965); Dofflemyer v. Director, 237 Md. 639 , 206 A. 2d 703 (1965); Ransom v. Warden, 236 Md. 639 , 204 A. 2d 563 (1964).

We think, however, that the application for leave to appeal should be denied on the merits of the contentions raised in the lower court. The applicant admitted at his trial that the statements elic ⁴³⁴ ited from him were voluntarily given. Judge Shure, moreover, found as a fact that the applicant made no request for counsel during the period of his interrogation. The statements, therefore, were not inadmissible under the rule of Escobedo v. Illinois, 378 U. S. 478 , 84 S. Ct. 1758 , 12 L. Ed. 2d 977 (1963) as having been made when the applicant was not represented by counsel.

Swartz v. State, 237 Md. 263 , 205 A. 2d 803 (1965); Bichell v. State, 235 Md. 395 , 201 A. 2d 800 (1964); Mefford & Blackburn v. State, 235 Md. 497 , 201 A. 2d 824 (1964), cert, den., 380 U. S. 937 (1965). The applicant’s conviction became final, moreover, before the decision in Escobedo was handed down, and we have recently held that we will not apply Escobedo retroactively. Hyde v. State, 240 Md. 661 , 215 A. 2d 145 (1965). The applicant’s second contention in regard to perjured testimony is equally without merit.

One of the State’s witnesses gave a false address and occupation upon direct examination. This was corrected upon cross-examination. The applicant alleged that the State “approved” of the witness’ falsification. The lower court made no finding whether the State took part in procuring the statement, or knew that it was false.

It seems clear to us that the applicant was in no way prejudiced by the witness’ testimony. Contradiction of a witness’ testimony on direct examination is the proper province of cross-examination, and the witness’ initial falsification, when made known to the jury, discredited the witness in their eyes. See Mahan v. State, 172 Md. 373 , 191 Atl. 575 (1937). Cf.

Howard v. State, 234 Md. 410 ,