State v. Merchant

Per Curiam. The application for leave to appeal is denied for the reasons set forth in the thorough and excellent opinion of Judge E. Mackall Childs in the Circuit Court for Anne Arundel County, dated May 12,1970. Application denied. ⁵⁴⁸ MEMORANDUM OF OPINION. The petitioner, Gus Merchant, an inmate of the.

Maryland Penitentiary serving a commuted sentence., of death for rape, seeks relief under the Uniform Post : Conviction Procedure Act, Article 27, Section 645A, et s'eq. of the Maryland Code. A hearing on this, the petitioner’s first post conviction petition, was held on April' 1, 1970. On October 9,1957, the petitioner, a negro laborer, was tried before Judges Benjamin Michaelson and Matthew Evans, sitting without a jury, and found guilty of the rape .of a white Glen Burnie housewife. One week later he was sentenced to death by the administration of lethal gas.

Following an unsuccessful appeal, Merchant v. State, 217 Md. 61 , Governor McKeldin commuted the petitioner’s sentence to life imprisonment. At his trial, the petitioner was represented by court appointed counsel, Noah A. Hillman, Esquire, an experienced and respected member of the bar, who was assisted by a younger associate, John A. Blondell, Esquire, who made investigations and represented the petitioner at the sentencing. The petitioner’s defense asserted by' counsel throughout the trial consisted primarily of an. attack on the voluntariness of the “confession” given by Merchant to the police. The petitioner was thoroughly advised of his right to testify or remain silent at his trial and did not testify in his own behalf even though he had persistently maintained in his statement and to his attorneys at all times prior to his conviction, that the victim had consented to the intercourse.

No attempt was. made by counsel to develop this defense or to conduct any investigation into the reputation of the prosecutrix. On the appeal after conviction Merchant’s counsel again raised the issues of the voluntariness of the confession, the insufficiency of the evidence, and the excessiveness oi the penalty. In this petition, the petitioner makes the following allegations : 1. That he was denied due process of law. 2.

That the “confession” was involuntary. ⁵⁴⁹ 3. That the court failed to scrutinize the evidence. 4. That the defendant was denied the right to testify in his behalf. 5. That evidence was suppressed. 6.

That adverse publicity prejudiced his trial. 7. That the petitioner was denied his constitutional right to have genuine and effective representation by counsel for his defense in that the petitioner’s court appointed attorneys who, as a result of prejudging the petitioner’s guilt, failed to pursue the defense of consent or make an appropriate investigation into the reputation of the prosecutrix. The petitioner’s present court-appointed attorney waived final argument on all contentions save the allegation as to incompetency of counsel. However, this court in event of appeal must make a finding on each ground asserted.

Rule BK45b; Farrell v. Warden, 241 Md. 46 . I DENIAL OF DUE PROCESS The bare allegation of denial of due process is not sufficient to sustain post conviction relief. Austin v. Director, 237 Md. 314 ; Briscoe v. Warden, 3 Md. App. 182 . II THE “CONFESSION” This allegation that the confession was involuntary was finally determined by the Court of Appeals in petitioner’s appeal, Merchant v. State, supra, and may not be relitigated in post conviction proceedings.

Meadows v. Warden, 243 Md. 710 . III FAILURE OF COURT TO SCRUTINIZE THE EVIDENCE Sufficiency of the evidence may not be reviewed in a post conviction case. Austin v. Director, supra; Johnson v. Director, 243 Md. 708 . ⁵⁵⁰ IV DENIAL OF RIGHT TO TESTIFY The court finds that after the State had rested its case, counsel and petitioner engaged in a lengthy discussion as to whether or not Merchant would testify in his own behalf and the decision not to testify was that of Merchant. V SUPPRESSION OF EVIDENCE See explanation for rejecting first contention.

VI PREJUDICIAL PUBLICITY The court found no evidence of unduly prejudicial pretrial publicity. The only reference of talk of lynching was contained in Judge Michaelson’s dissertation prior to sentencing. Moreover, this was a court trial and there was no showing whatsoever that the two judges hearing the case had been influenced by any pretrial publicity. VI DENIAL OF EFFECTIVE REPRESENTATION It is well-established that in a post conviction hearing a petitioner is not precluded from raising the issue of incompetency of counsel because he failed to raise the issue at trial or pursue it on appeal.

Sample v. Warden, 6 Md. App. 103, 107 ; O’Connor v. Warden, 6 Md. App. 590, 594 . Therefore, this petitioner is entitled to have this allegation considered. The test for determining incompetency of counsel for purposes of habeas corpus and post conviction review which obtained at the time of the petitioner’s original trial appears to have been whether there existed at the trial (1) bad faith, (2) fraud, (3) collusion with the State on the part of defense counsel, or (4) such incompetency as would make the trial a farce. Slater v. Warden, 241 Md. 668 .

More recently, the test has been whether under all the circumstances of the particular case the pe ⁵⁵¹ titioner was afforded genuine and effective representation. Hyde v. Warden, 235 Md. 641 . Slater, supra, also appears to hold that a post conviction petitioner is entitled to have applied the test which obtains at the time of his post conviction petition and not the test which obtained at the time of his trial. Mere errors in trial tactics are not sufficient to constitute incompetency of counsel.

Hall v. Warden, 224 Md. 662, 665 ; Gullion v. Warden, 3 Md. App. 263, 265 ; Henry v. Mississippi, 379 U. S. 443 , 13 L.Ed.2d 408 . Furthermore, failure to raise an available defense at trial does not, in itself, constitute incompetency of counsel. Annotation at 74 A.L.R.2d 1390 , 1449. The prosecuting witness testified that on the morning of July 25, 1957 she had prepared her husband’s breakfast and he had left for work at 5:30 A.M. She shut the door and locked it, cleaned the table, straightened the kitchen, and looked at her sleeping children, ten and twelve years of age.

She then stated she went back to bed and was asleep when the defendant jumped on top of her in bed, threatened her with a knife, and demanded sexual intercourse. She related several involved conversations with the intruder who is alleged to have had a knife in his hand. After having relations with her, he is alleged to have demanded five dollars for bus fare. She gave him eleven dollars and continued to converse with him while fixing herself a cup of coffee.

After his departure she fixed breakfast for her two boys, cleansed herself, dressed, made the bed, and went next door to her sister’s home where she reported she had been raped. Meanwhile, the petitioner, only a short distance from the prosecutrix’s home, engaged in conversation with Mr. and Mrs. Jesse Quarles and paid Quarles $1.90 for a previous loan and transportation to work. He then went to a nearby liquor store and bought a small bottle of wine. From thence he went to the home of his mother-in-law where he paid her $8.00.

It was there later in the same day that the police found him hiding in a clothes closet. ⁵⁵² That evening after several hours of intermittent questioning, Merchant asked the interrogating officer if it would be easier on him if he told the truth. The policeman responded that he would make no promises, — “but the truth hurts ho one.” Thereupon, Merchant proceeded to give a statement which was exculpatory in nature wherein h¿ admitted having intercourse with the prosecuting witness, but stated it was voluntary on her part. See Merchant v. State, supra, pages 68-69. Messrs.

Hillman and Blondell entered their appearances for the petitioner on October 5th, 1957. While Merchant at the hearing complained that counsel did not visit him often enough, he did state that he saw them twice before the arraignment on September 24th. He stated that he wanted a jury trial, but Mr. Blondell decided on a court trial and that Mr. Hillman suggested he plead guilty and throw himself on the mercy of the court. The court is of the opinion, and so finds, that defense counsel were conscientious, attentive, and thorough insofar as their theory of the case was concerned.

The court believes Mr. Blondell in his statement that he visited Merchant at least twelve times before the trial, and personally checked the stories of all persons whose names were given him by his client to determine whether or not they would be helpful in his case as witnesses. Mr. Blondell has, since this case, had extensive criminal law practice both in a prosecutorial and defense capacity and testified that in reviewing the procedure in the case he would not in the light of his experience, since acquired, try the case in a different manner. Mr. Hillman’s established reputation as an experienced and ethical practitioner needs no embellishment from this court. However, the following colloquy took place during Mr. Hillman’s testimony: Mr. Hillman: Oh Direct Examination by Mr. Weathersbee (State’s Attorney) Q. In regard to the confession, what if any ⁵⁵³ thing, did the defendant Merchant before trial on the conferences of the third, seventh, and eighth say to you ?

A. I recollect this. I believe that at some point he told us that intercourse was voluntary. Which I didn’t believe. (Italics by the Court) And on two occasions, either the first visit and the last, or the second and the last, he was told in no uncertain terms that he would have to come wp with some sort of an alibi that sounded better than that, that this woman consented to have intercourse with him, in her home, in her bed.

He was told that ! Q. By whom? A. By me. I don’t know whether Mr. Blondell told him anything, but I did.

Q. Why did you say that? A. Because it didn’t make sense. Here was a married woman, of a different race, in her own home, in bed, in the early morning, and he wanted us to believe, and have a court or a jury believe, that he came into that home and had intercourse with her voluntarily. We didn’t believe it, or 1 didn’t.

I don’t know what Mr. Blondell believed, but I didn’t. And 1 believed that he would have had to have an alibi or a stronger defense than to say that she had intercourse with him voluntarily. On Cross Examination by Mr. Stack Q. Did you feel that you were adequately prepared for the case, sir? A. I didn’t think the case was complicated.

I thought it was a simple case. Q. You mean because you believed the man to be guilty? A. No, not that. Q. Well, you stated that you did not believe his story. ⁵⁵⁴ A. We didn’t; we couldn’t — I could not accept the story that he went into this home and had intercourse with this woman of a different race and that she voluntarily consented.

It didn’t set right; there had to be something else to it, that’s what I mean. And so he was importuned to give us another — at first, if I recollect, he denied it — then came around to the idea that she agreed. Q. Was a background investigation made of Mrs. — ? A. No, I didn’t; whether Mr. Blondell did, I don’t know, Q. Did you at any time attempt to ascertain whether or not Mrs. — volunteered to have intercourse with Gus Merchant?

A. No. On Examination by the Court Q. Mr. Hillman, were you aware that your client had given a statement prior to the trial, to the police ? A. Yes. Q. And were you able to ascertain what the statement contained? A. No. I don’t recollect that we did — may be Mr. Blondell has this recollection, because he has notes I’m sure because he made certain independent — .

Q. Did you try to ascertain from the defendant himself what he told the police ? A. Oh, yes. Q. And do you recall just what he had told the police as far as he related it to you ? A. I’d have to stretch my imagination widely to recall now what he told me, except that I can say that as to this, as I told Your Honor, that the story that he told us, I’m sure that on two occasions I told him a couple of times to come up with a better story than that. ⁵⁵⁵ Mr. Blondell: On Direct Examination by Mr. Weathersbee Q. Do you recall prior to trial having observed the statement that Mr. Merchant gave to the police?

A. Prior to trial, yes. Q. How did you obtain that? A. From the State’s Attorney’s office, and I could be wrong, but I am sure that we went over that statement with Gus prior to trial. I am practically sure of it, because we had a very heart-to-heart talk over the statement that he gave, and he stuck to it.

On Cross-Examination by Mr. Stack Q. At any time, in your recollection, did Gus Merchant deviate from his statement that he had not raped that woman ? A. Did he ever deviate ? Q. Did he ever profess. . . A. His story from the very beginning '¡to the end was that it was by consent, from the very beginning.

Q. As stated in the statement he gave to the police? A. That’s right, he stuck with that statement from the beginning to the end. Q. Did you spend any time in investigation attempting to verify that statement? A. No, I didn’t attempt to talk to the victim.

Q. Did you talk with the victim’s sister ? A. No. Q. Did you talk with the victim’s husband? A. Oh, no. Q. You did nothing to check out this statement, check it out to see if it were true ?

A. Gus Merchant insisted that it was true. Q. Did you do anything to verify or to confirm in your own mind whether or not this statement was true ? ⁵⁵⁶ A. Well, other than to check up on. wheie he was and what these other people or at least talk to them, no, I didn’t do anything else to '. verify as to what he said. “The criminal statute of this state, although fixing the penalties, does not define the crime of rape. See Code (1957) Art. 27, § 461. However1, the law writers generally define common law rape as the act of a man having unlawful carnal knowledge of a female over the age of ten years by force without the consent and against the will of the victim.

Hochheimer, Criminal Law, § 47 (1911); 1 Wharton, Criminal Law and Procedure, § 300 (1957) ; 44 Am. Jur., Rape, % 2; 75 C.J.S., Rape, § 1. “Force is an essential element of the ciime and to justify a conviction, the evidence must warrant a conclusion either that the victim resisted and her resistance was overcome by forcé or that she was prevented from resisting by threats to her safety. But no particular amount of force, either actual or constructive, is required to constitute rape. Necessarily that fact must depend upon the prevailing circumstances.

As in this case force may exist without violence. If the acts and threats of the defendant were reasonably calculated to create in the mind of the victim — having regard to the circumstances in which she was placed — a real apprehension, due to fear, of imminent bodily harm, serious enough to impair or overcome her will to resist, then such acts