Smith v. Warden

Orth, J., delivered the opinion of the Court. This is an application for leave to appeal from an order of 3 February 1969 of Judge Roscoe H. Parker, presiding in the Circuit Court for Prince George’s County, denying relief prayed under a petition for relief under post conviction procedures. The prior history of the case is set forth in the memorandum accompanying the order. ⁵⁸⁰ The allegation of error as to the denial of relief, which was also the basis for a motion for a new trial which was denied, arises from the identification of the applicant at a lineup. Prior to the trial resulting in his conviction, the applicant filed a motion for discovery.

It included a request for the State to “furnish copies or permit defendant or his attorneys to copy all reports and results of all reports received by the State concerning any aspect of this case.” At the hearing on the post conviction petition it was stipulated that this “was never done affirmatively” and that “no reports were ever shown to the defense.” 1 At the trial, a victim of the robbery, Peter Barbera, testified that he identified the applicant at a lineup —“I recognized the voice, and then I knew what I heard that night, the voice was together.” The applicant alleges that “[i]t was only through chance that defendant’s counsel saw the said official lineup sheet, months after the trial * * 2 The lineup sheet, according to the memorandum opinion of the hearing court, noted that “Peter and Margaret Barbera say #6, which was the defendant, was possibly the voice engaged in the holdup, robbery.” The applicant urges that this variance between the notation on the lineup sheet and the testimony of Peter Barbera at the trial affords him grounds for relief in view of the non-disclosure to him of the lineup sheet. The hearing court stated in its memorandum that the applicant did not claim that this evidence was deliberately suppressed by the State. “I don’t gather that you said that. From the tenor of your trial (hearing) I think you said, I would gather that you say it was oversight.” It felt, however, that there was “the same import under the law, whether it is inadvertently or whether it was deliberately done.” It decided the question under the holding in Ross v. Warden, 1 Md. App. 46 , in which we said, at 58-54: ⁵⁸¹ “The Court of Appeals has held that the suppression or withholding by the State of material evidence exculpatory to an accused is a violation of due process and is ground for relief under the Uniform Post Conviction Procedure Act. The test in determining when a suppression of evidence can be said to amount to a denial of due process is that the evidence withheld was admissible, useful to the defense and capable of clearing or tending to clear the accused of guilt — i.e., exculpatory, or of substantially affecting the punishment to be imposed * * *.

The State’s Attorney is chargeable with knowledge of those facts known to the police department representing the local subdivision that has jurisdiction to try the case. State v. Giles, 239 Md. 458 , 212 A. 2d 101 (1965), cert. granted, 383 U. S. 941 , (1967), 35 L.W. 4181; Strosnider v. Warden, 228 Md. 663 , 180 A. 2d 854 .” The court here found that the evidence would have been admissible and that it would have been useful to the defense but that it was not exculpatory because it did not have the effect of “freeing or tending to free from blame” as would be the case where a complaining witness told the police that the accused was not the guilty party. In effect, the hearing court found that the evidence not disclosed went only to the weight of the in-court identification and thus was not exculpatory; as it was not exculpatory it afforded no ground for relief. It had “some doubt” whether the notation on the lineup sheet was accurate, but did not decide the point, assuming for the purpose of its decision that it was