State v. D'ONOFRIO

Henderson, J., delivered the opinion of the Court. On June 1, 1956, the appellee, along with two co-defendants, was tried and convicted of robbery with a dangerous and deadly weapon by Judge Smith sitting without a jury in the Circuit Court for Baltimore County, and sentenced to twelve years imprisonment. The co-defendants received sentences of eight and twelve years, respectively. All of them were represented by competent counsel.

On November 24, 1958, the appellee filed a petition under the Post Conviction Procedure Act, which was answered by the State’s Attorney on December 5, 1958. After a hearing on December 16, 1958, before Judge Gontrum, the judgment, verdict and sentence were ordered stricken and the petitioner released from custody. The State filed an application for leave to appeal, which was granted by this Court, and the case advanced for argument. The appellee’s first contention is that the application for leave to appeal was not in time, and the matter is not properly before us.

It appears that on January 13, 1959, the ²³ State’s Attorney for Baltimore County filed with the Clerk of the Circuit Court an application for leave to appeal, which remained in the Clerk’s office until May 22, 1959, when it was forwarded to this Court. Code (1959 Supp.) Art. 27, sec. 645-1, provides that any person aggrieved, including the State “may within thirty (30) days after the passage of [an order under the Act] * * *, apply to the Court of Appeals of Maryland for leave to prosecute an appeal therefrom. Said application for leave to prosecute an appeal shall be in such form as the Court of Appeals may, by its rules, prescribe”. This Act took effect June 1, 1958.

On July 2, 1958, this Court amended Rule 811 a, to provide that an application for leave to appeal in a post conviction case “may be filed either with the Clerk of this Court or with the clerk of the lower court to be transmitted forthwith by him, with the record of the post conviction proceeding, to this Court.” See also Rule 893. The appellee also refers to the fact that certain sections of the Act (but not sec. 645-1) were amended by chapter 429, Acts of 1959, effective June 1, 1959, although the relevance of this is not apparent. The argument seems to be that sec. 645-1 requires an application to be made to the Court of Appeals and lodged there within thirty days, and that Rule 811 a does not purport to change the requirement that the application reach this Court within the period prescribed. If there is any substance to the claim, and we do not so decide, it is clear in this record that the State’s Attorney not only filed the application in the lower court, but also on January 14, 1959, sent a copy of the application to the Clerk of this Court, which was received on January 15, 1959, within thirty days from the date of the challenged order.

Thus, on any theory, the case is properly before us. The appellee also contends that the transcript of testimony of the trial of the appellee in 1956 is not properly before us. It is true that this transcript was not offered in evidence at the post conviction hearing, but that hearing was conducted in a most unusual manner. Judge Smith had retired from the bench at the time of the hearing, but he nevertheless, by invitation of Judge Gontrum, and without objection by either side, sat with Judge Gontrum at the hearing and conferred with ²⁴ him in chambers.

In his first oral opinion Judge Gontrum referred to his consultation with former Judge Smith, and stated “If I had been sitting in this case when it was heard by Judge Smith, I would have unquestionably found D’Onofrio guilty; there would have been no alternative. The only possible verdict was ‘guilty’.” It is difficult to see how the court could make such a statement, without an examination of the transcript, unless the court relied upon a summary of the testimony supplied from the recollection of former Judge Smith. Judge Gontrum, of course, did not sit in the trial in 1956. The court continued: “It is true that the defendant D’Onofrio was not convicted on the testimony of the co-defendants.

His presence at the scene of the holdup and his actions at that time certainly indicated beyond a reasonable doubt that he was a party to the crime. However, the repudiation of the testimony given at the trial by Burroughs and Burke casts sufficient doubt upon D’Onofrio’s guilt to justify the court in setting aside the original verdict of guilty. I feel that unquestionably a mistake was made by reason of the perjury of the two co-defendants and that in the interest of justice D’Onofrio should be free. Judge Smith is of the same opinion and states he would not have convicted D’Onofrio if the other two defendants had testified at the hearing before him as they now admit to be the truth.” Judge Gontrum also stated that he was impressed, and “Judge Smith must be also”, with the opinion of Father Tobey, the Prison Chaplain, expressed in court, that “Burroughs is now telling the truth and that D’Onofrio is also telling the truth, his words have great weight with the court.” Four days later, in a supplementary statement, Judge Gontrum stated that “D’Onofrio is not so much the injured innocent * * *.

He is the only one of the trio * * * who had a criminal record. * * * His actions at the time of the holdup were such as to justify a conclusion that he was guilty beyond a reasonable doubt and to a moral certainty. * * * It is only because the court feels that there is now a reasonable doubt raised by the subsequent testimony of Burroughs, the statement of Burke and the convincing testimony of Father Tobey that the court has arrived at the opinion that D’Onofrio’s ²⁵ fantastic tale is a true one. * * * I believe he was not guilty of the offense charged against him.” Subsequent to the filing of the application for appeal, the State, over objection by the appellee, sought to include the original transcript in the record. The appellee filed a motion to strike which came on for hearing. On May 20, 1959, Judge Gontrum filed a lengthy memorandum, reviewing the whole case, in which he noted that the State had offered no testimony at the post conviction hearing, and “the court was left under the definite impression that the State had no objections to the granting of the relief prayed. * * * With the advantage of having former Judge Smith confer with me in the hearing on the petition, I felt that 1 was, to quite an extent, in the position of the court sitting as a jury which had heard the original case. I was not informed by the State’s Attorney that the testimony of Burroughs and Burke was not a part of the State’s case, nor did I ask Judge Smith concerning it * * The court continued: “* * * it would seem that the transcript of the testimony in the original case is not a part of the record in this appeal.

However, in order that the Court of Appeals may have the whole record before it, I have ordered that a transcript of the original hearing be filed in the record * * *. In conclusion, after having familiarized myself with the record of the original suit when the matter was brought up some weeks subsequent to the hearing, I am still of the opinion that D’Onofrio’s strange tale is true, and that to confine him longer in prison would be a miscarriage of justice. For that reason I have released him on bail, pending an appeal * * It is well settled, of course, that a record cannot be amplified by the introduction of new matter or proceedings taken in the trial court subsequent to a hearing, with possible exceptions in connection with divorce proceedings or where there is a claim that the case has become moot. Under the very unusual circumstances of the instant case, however, we are disposed to consider the transcript of the original proceedings for several reasons.

In the first place, it seems clear that the court’s action, appealed from, was predicated upon a misconception of what actually occurred in the original trial, ²⁶ and probably upon a misconception as to the court’s proper function in a post conviction hearing. In such a hearing the question is the legality of the detention or sentence, not the determination of guilt or innocence in a trial de novo. If the sentence is to be set aside, rather than corrected, the accused would ordinarily be entitled to a new trial, not to an unconditional release. Moreover, to a considerable extent, the court’s opinion seems to have been formed, not on the basis of facts in the record, but upon the opinions of former Judge Smith and Father Tobey on the ultimate questions of guilt or veracity, that were for the court alone to decide, insofar as relevant at all to the inquiry before the court.

Judge Smith was invited to sit as a friend of the court “to advise with me concerning the disposition of the case”, at a time when he was no longer a judge. Under sec. 645G of Art. 27, Code (1959 Supp.), it is provided that the judge sitting at the original trial shall not sit, except with the consent of the person convicted. Of course, a former judge is not qualified to sit in judgment and decide a case, even with the consent of both sides. We think these irregularities, without more,