State v. Mahoney

Orth, J., delivered the opinion of the Court. I JOHN EDWARD MAHONEY (appellee), Will Smith Mahoney and Charles William Van Hoozier were jointly charged in the 1st count in the indictment returned against them with robbing Michael James Breuer with a deadly weapon on 11 August 1967. The indictment presented related offenses set out in six additional counts. John Mahoney was separately tried by a jury in the Circuit Court for Montgomery County.

On 14 June 1968 he was convicted under the 1st count and sentenced to 20 years.* 1 On direct appeal from that judgment, he ¹⁹⁵ claimed only that the indictment was defective because of a misjoinder of counts. Finding no merit in that contention, we affirmed the judgment. Mahoney v. State, 6 Md. App. 407 . John Mahoney had the assistance of counsel for his defense at his trial, but he now feels that his counsel was incompetent.

Collaterally attacking the judgment, he presented the point in a petition for relief under the Post Conviction Procedure Act, complaining that his counsel failed to call on his behalf witnesses who would have testified that he was home at the time the crime was committed. Following an evidentiary hearing, at which Mahoney and his trial counsel both testified, the court concluded that trial counsel had been incompetent and ordered a new trial. The State filed an application for leave to appeal from that determination. We obtained and reviewed a copy of the transcript of the trial and of the post conviction hearing.

We set out what they disclosed in an unreported per curiam opinion filed 17 April 1972, docketed as State v. Mahoney, No. 123, Post Conviction, September Term, 1971. At John Mahoney’s trial, Michael Breuer, Manager of McDonald’s Restaurant on Rockville Pike, testified that he was held up at gunpoint at approximately 1:00 a.m. or 1:30 a.m. on August 11, 1967 by three masked men as he was leaving the store. He was forced back into the restaurant, the safe was opened and a large sum of money was stolen. Breuer was unable to identify any of the masked robbers.

Steven Wilson, who resided near Mahoney’s home, testified that he, together with John Mahoney and his brother Will Mahoney, held up Breuer at the restaurant. He said that they walked to McDonald’s, ate there, and then went behind the restaurant and put on face masks. Thereafter, John Mahoney forced Breuer at gunpoint to lie on the floor of the restaurant, emptied the safe of its ¹⁹⁶ money, and ripped the phone from the wall. They all then ran away on foot, after which they divided the stolen money and John threw the gun under a nearby bridge.

Charles Van Hoozier, also a neighbor of the Mahoney family, testified that shortly after the robbery John Ma-honey came to his home and said he had committed a robbery at McDonald’s Restaurant. Van Hoozier then accompanied Mahoney to Gaithersburg where Mahoney purchased a car with part of the stolen money. Van Hoozier testified that Mahoney gave money to him to supply him with an alibi. He also admitted hiding in his house money stolen in the robbery.

It was subsequently recovered by police who conducted a search of Van Hoozier’s house with his permission. Lonzy Walters, Mahoney’s uncle, testified that on the evening following the robbery, Mahoney came to his home; that Will Mahoney and his wife were also present; that they all went riding in John Mahoney’s car, at which time John Mahoney said he had committed a robbery at McDonald’s Restaurant in Rockville; that they had worn masks over their faces and had taken $1400.00. Walters notified the police and John and Will Mahoney were later arrested. Both John and Will Mahoney confessed their participation in the robbery to the police shortly after their arrests.

In John Mahoney’s statement, he admitted participating in the robbery with his brother Will and Steven Wilson. He admitted using a gun which he later threw under a bridge. He said they arrived at McDonald’s at approximately midnight, having walked there from his home. He said they used masks over their faces and that after committing the crime, they returned home. 2 ¹⁹⁷ Evidence was adduced at the trial showing that the robbers’ masks were found near the scene of the crime; that the gun was found under a nearby bridge; that Mahoney had purchased a car immediately after the robbery and, when arrested, had $139.00 in his possession.

Mahoney offered no evidence in his defense and the jury found him guilty of armed robbery. At the post conviction hearing, Mahoney contended that his trial counsel was incompetent “due to the fact that he failed to call to the stand any witnesses on * * * [his] behalf, even though such witnesses were readily available * * * and could afford testimony to the fact that * * * [he] was at his legal place of residence, 13817 Travilah Road, Rockville, Maryland, during the time that the crime that he is presently incarcerated for was committed.” Mahoney testified that his father, mother, sister, brother, and sister-in-law would have so testified had they been called as witnesses at the trial, but that trial counsel refused to call these witnesses although requested both prior to and during the trial without assigning any reason for his decision. Mahoney also contended that a gas station attendant named Jim and a friend, Sue Evans, would have testified in support of his alibi, but trial counsel refused to call them as witnesses although requested to do so. It was Mahoney’s testimony that he was in bed at 12:30 a.m. on the day of the crime; that his mother and father were also in bed at that time; that his mother was a light sleeper and would have heard him if he drove away from the house.

He said his brother Elwood slept in the same bedroom with him and would provide “an alibi” that he was at home when the crime was committed; that when he (Mahoney) went to bed that night, Elwood was still awake and they talked before retiring. Mahoney further testified that his sister Barbara Ann would have testified that she had seen him “that night,” and that his brother Perry would have testified that he saw him working on his car on the night of the crime. Ma-honey testified that had Sue Evans been called as a wit ¹⁹⁸ ness, she would have said that on the night of the crime he had changed some of his money into dollar bills, later found on him when he was arrested; and that the gas station attendant Jim would have testified that he (Ma-honey) was working on his car at 10:30 p.m. that night. Mahoney’s mother testified at the post conviction hearing that at 12:30 a.m. on the day of the crime, “as far as I know,” her son was at home.

She said he had worked on his car earlier that night and came home around 10.30 p.m. She said she didn’t recall when she went to bed that night, although she thought it was around midnight, but that her son was still up when she retired. She testified that had her son driven away from the house that night, she would have heard him leave. Mahoney’s sister-in-law (Will’s wife) testified that she saw him at home at 11:30 p.m. on the night of the crime.

She also testified that she and her husband went to bed at 11:00 p.m. that night. Mahoney’s trial counsel, John Bell, testified at the post conviction hearing that he knew that Mahoney’s relatives were prepared to testify to “some type of alibi for him at the time that this alleged offense was to have taken place.” Bell said: “* * * this presented a difficult situation for the defense attorney or any defense attorney but I think it is abundantly clear that while a defense attorney is an instrumentality by which the defendant’s case is presented to the jury and to the Court, the defense attorney cannot take the facts of a case and change them substantially, nor can a defense attorney in any way participate in a fraud upon the Court or lend himself to any perjury or subordination of perjury from the defendant or any other witnesses and for that reason Will Smith Mahoney having indicated to me that he and his brother had done this, I don’t believe that John Mahoney had told me of his involvement, actually admitted it, al ¹⁹⁹ though it was abundantly clear from all of the evidence, it seemed appropriate to me as a tactical maneuver not to protect for the record everything that had been admitted into evidence, to protect all of the exceptions and objections that had been made and to stand on the record as it was and not to bring any fabrication or lies or any other false, spurious, counterfeit facts before the Court or before the jury.” Bell testified that Will Mahoney had admitted to him committing the crime and implicated John. Bell said he interviewed all witnesses that Mahoney asked him to interview; that he didn’t recall their names but thought the mother and other relatives were among such prospective witnesses. Asked by the court whether he declined to call alibi witnesses because he thought such witnesses would be lying, Bell answered in the affirmative, and said he so told Mahoney.

The court then asked: “Are you the judge? Are you supposed to make that judgment as to whether or not their testimony would be perjured?” Bell responded: “Your Honor, I don’t know whether I am the judge or not but if one of the defendants has admitted to me that he had committed the offense and if in interviewing all of the State’s witnesses, including the relatives, would lead a reasonable person to believe that the testimony would be false — .” The court rejoined: “Isn’t the jury the judge? Isn’t the jury entitled to hear the testimony of the defendant’s witnesses and then reach its own judgment as to who is telling the truth and who isn’t?” Bell answered: “I would take the position that I am not going ²⁰⁰ to put on any witnesses, including the defendant, who I think is going to give perjured testimony.” The court granted Mahoney a new trial. It stated that under Maryland law “failure to call witnesses, going to the competency of counsel,” is a ground upon which post conviction relief may be granted if it amounts “to more than a tactical judgment and it must amount to depriving * * * the defendant at his trial of due process.” The court found as a fact that Bell’s reason for not calling Mahoney’s alibi witnesses was because he thought “they would be lying” and Bell “didn’t want to be part of it.” The court also found as a fact that Mahoney asked Bell to summons his mother, father, sister, a brother, his sister-in-law, the gas station attendant and Sue Evans, but that Bell refused to call them as witnesses.

The court said that Mahoney’s testimony was that his brother Elwood, had he been called as a witness, would have testified that Mahoney was either in bed or asleep at about the time the crime was committed. The court summarized the post conviction testimony of Mahoney’s mother and sister-in-law; it noted that while neither could testify where Mahoney was “at precisely the time when the alleged offense was committed,” their testimony at the trial “would have had some probative value.” The court held that Mahoney “had a constitutional right to have his so-called alibi witnesses present, and if he insisted upon it, to have them take the stand and to have the jury, not the lawyer, decide whether their testimony was credible or not.” The court concluded that Bell’s failure to accede to Mahoney’s wish “to have his alibi witnesses testify for him * * * deprived * * * [him] of due process”; that if Bell “didn’t like the way his client was insisting that the case be tried, he should have withdrawn his appearance, should have petitioned the Court to relieve him of the obligation to defend.” The State applied for leave to appeal. It claimed that due process of law was not offended by Bell’s failure to ²⁰¹ call the so-called alibi witnesses to testify at the trial. The State maintained that “the authorities are legion which hold that the failure or neglect of trial counsel in calling or not calling witnesses, even if material, does not aiford grounds to support a claim of inadequate representation.” The State contended that the “calling of different witnesses is a matter of trial tactics and even if the tactics prove to be wrong, a denial of the right to * * * [competent] counsel * * * is not shown short of a clear allegation and proof of a factual situation showing that the representation of counsel reduced the trial to a farce or sham.” Of course, as we pointed out in our opinion of 17 April 1972, the State’s reliance upon the “farce or sham” test was misplaced; that test for assessing the constitutional adequacy of trial counsel is no longer the law of this State.

See Slater v. Warden, 241 Md. 688 , and Green v. Warden, 3 Md. App. 266 , noting, as indicated infra, that the proper test for determining the competency of trial