Scott v. Warden, Maryland Penitentiary

²⁰² Orth, J., delivered the opinion of the Court. The applicant attacked by his first petition under the Uniform Post Conviction Procedure Act his convictions of daytime housebreaking and grand larceny at a court trial in the Criminal Court of Baltimore, receiving on each a 10 year sentence, the sentences to run concurrently. Upon hearing in the Criminal Court of Baltimore the relief sought was denied. He seeks leave to appeal requesting review on only two questions: 1) whether his trial was “fundamentally fairand 2) whether due process was violated when the State’s witnesses were not sequestered at the time evidence was received on the issue of the legality of his arrest.

The answer to the second question is that we found on his direct appeal, Scott v. State, 3 Md. App. 429, 439-440 , that the legality of his arrest was not material in that evidence admitted against him was not seized by a search of his person or of premises with regard to which he had standing to object. Even if his arrest were illegal, it would not affect the jurisdiction of the trial court, would not be a ground for dismissing the indictment and would not preclude trial and conviction for the offenses. Jones v. State, 5 Md. App. 489 ; Nadolski v. State, 1 Md. App. 304 . A failure to request sequestration- of the witnesses on that issue or that they were not in fact sequestered could not prejudice him in any event.

As to the first question, he sets out five reasons why he was “denied a fundamentally fair trial when considering the totality of this instant case” : “a) the prejudicial atmosphere of the courtroom with all of the State’s witnesses present to hear the testimony of each other as to the most germane issues of law in the case. b) when considering the fact that petitioner’s appellant ²⁰³ attorney failed to file a writ of certiorari to the Court of Appeals of Maryland after he was requested by petitioner to do so. c) when considering at the time of interrogation petitioner was only given the Miranda warning in part. d) when considering the fact that even though the statement recorded on the tape recorder was not actually entered into evidence its contents was revealed to the trial court. e) when considering that the record does not show that petitioner waived the right to counsel or any other right.” (a) That the failure to sequester the witness caused a “prejudicial atmosphere” is a bald allegation. There was no claim that he requested that the witnesses be sequestered and that the request was denied and there were no circumstances alleged sufficient to show that the court on its own motion should have excluded the witnesses from the courtroom. See Md. Rule 753. Even failure of the trial court to comply with the Rule is not necessarily reversible error.

Swift v. State, 224 Md. 300 . The purpose of the Rule is to prevent prejudice and no prejudice was shown here. Watts v. State, 3 Md. App. 454 . (b) Counsel representing the applicant on the appeal from his convictions was appointed on 7 August 1967.

The mandate of this Court affirming the judgments became final on 23 April 1968. On 23 June 1967 the Court of Appeals adopted Md. Rule 719b (7) (b) which became effective 1 September 1967. It states that the authority and duty of counsel appointed to represent an indigent appellant on appeal to this Court shall continue from the date of the appointment until the expiration of the time for filing a petition for a writ of certiorari to review the decision. It provides: “Counsel shall be obliged to advise the indigent appellant * * * concerning his right to apply for certiorari and, if directed by the accused, shall assist in the preparation of a petition for certiorari and shall file the same over the signature of the accused.” In a memorandum opinion under ²⁰⁴ date of 4 December 1968, as a supplement to the opinion accompanying the order of 27 November, the lower court noted that it had failed to decide “the question of alleged infraction of Petitioner’s constitutional rights, due to the fact that upon the Petitioner’s request, his attorney failed to file a writ of certiorari.” It was of the opinion that such failure “did not in any aspect