Robinson v. Warden

Morton, J., delivered the opinion of the Court. The applicant was convicted of murder in the first degree on 18 December 1953 at a court trial in the Criminal Court of Baltimore. A motion for a new trial filed by him the same day was withdrawn on 11 February 1954 and he was sentenced to imprisonment for the balance of his natural life. The applicant did not appeal from the judgment.

A petition for relief under the U.P.C.P.A. was filed on 15 September 1965 and an order of the Criminal Court of Baltimore of 2 November 1965 authorized that the petition be withdrawn without prejudice as requested by the applicant after conferring with his court appointed counsel. On 6 October 1967 the applicant again filed ⁷⁰ a petition for relief under post conviction procedures and relief was denied by Judge Meyer M. Cardin after a hearing in the Criminal Court of Baltimore at which the applicant was represented by appointed counsel. He seeks leave to appeal from the denial of relief. There was before the lower court five allegations presented in the petition and one allegation raised during the hearing: I. A confession was improperly admitted in evidence against the applicant; II.

The grand jury which indicted the applicant was unconstitutionally impaneled; III. The applicant was arrested three days after the crime without a warrant ; IV. The grand jury which indicted the applicant “was not from a true and honest cross-section of the community” ; V. Without the confession there was not sufficient evidence to sustain the conviction; VI. The applicant should not have been tried because he was “non compos mentis.” Allegations II-VI, inclusive are without merit.

In allegation II the applicant relies on Schowgurow v. State, 240 Md. 121 , but the legal principle enunciated in Schowgurow is not applied retroactively, except for convictions which had not become final before rendition of the opinion, 240 Md. at 132 , and the applicant’s case became final before the opinion was rendered. The applicant supports allegation III only by stating that his arrest was not made under authority of a warrant. A warrant-less arrest for either a felony or a misdemeanor is valid under proper circumstances. Robinson v. State, 4 Md. App. 515.

In any event, an illegal arrest does not affect the jurisdiction of the court and does not preclude a trial and conviction. Nadolski v. State, 1 Md. App. 304 . Further, the applicant does not contend that “fruits” of the arrest were received in evidence against him, and if they were not, the legality of the arrest was immaterial. Hutchinson v. State, 1 Md. App. 362 .

And if they were, the hearing court found that the point was not raised at the trial on the merits. Md. Rules 1085. An objection to illegally seized evidence may be waived by failure to make timely objection. ⁷¹ Gaudio and Bucci v. State, 1 Md. App. 455 . With regard to allegation IV the hearing court stated that it was “totally unsupported.” See Watson v. Warden, 2 Md. App. 134 ; Grayson v. State, 1 Md. App. 548 .

Allegation V goes to the sufficiency of the evidence, which is not available under post conviction procedures. Nixon v. Director, 1 Md. App. 14 . Of course, if the confession be found to have been improperly admitted in evidence, and the error not waived, the applicant would be entitled to a new trial in any event. The hearing court resolved allegation VI by referring to the report submitted by the Chief Medical Examiner of the Supreme Bench under date of 15 February 1954, almost two months after the verdict, in which it was the opinion of the examining physician that the applicant must be considered a responsible agent.

But the case went to trial on the merits under a plea of not guilty, there being no plea alleging that the applicant was insane at the time of the commission of the alleged crime and/or that he was insane at the time of the trial, as required when it is desired to interpose the defense of insanity. Md. Code, Art. 59, § 7, then in effect. 1 The issue not being tried and decided at the trial, it would not have been available on direct appeal, Md. Rules 1085, and is not available under post conviction procedures. With regard to allegation 1 the applicant alleged in his petition for relief that the confession used against him “was obtained in violation of the Due Process clause of the Fourteenth Amendment of the United States Constitution.” The test by which the admissibility of the applicant’s confession is measured is whether it was freely and voluntarily made at a time when he knew and understood what he was saying. Fisher v. State, 1 Md. App. 505 .

Compliance with the procedural safeguards of Miranda v. Arizona, 384 U. S. 436 was not required to render it admissible