McCargo v. Warden

Per Curiam. This is an application for leave to appeal from an order of Judge B. Hackett Turner, Jr., sitting in the Circuit Court for Caroline County, denying Post Conviction relief. The record indicates that subsequent to the hearing upon applicant’s petition, Judge Turner granted the State’s motion for an additional hearing at which Chief Judge J. DeWeese Carter, who presided at applicant’s original trial on charges of storehouse breaking, was permitted to testify in rebuttal to certain testimony given by applicant’s witnesses at the original Post Conviction hearing. In this application for leave to appeal, it is contended: (1) that permitting Judge Carter to testify was a “violation of the spirit of Md. Rule BK44 c;” (2) that it was error “to allow additional testimony to be taken;” and (3) that “it was clearly erroneous for the trial court to find petitioner’s counsel at his original trial to be competent.” We disagree.

While it is true that Md. Rule BK44 c provides that a Post Conviction hearing shall not be conducted by the “judge who sat at the trial at which petitioner was convicted,” without petitioner’s consent, it is clear from the record before us that Judge Turner, not Judge Carter, presided at the hearing. Judge Carter’s only participation in the hearing was in the role of a witness and his testimony consisted simply in