Thomas v. Warden

Thompson, J., delivered the opinion of the Court. This is an application for leave to appeal by James Thomas from an order by Judge B. Hackett Turner, Jr. of the Circuit Court for Kent County, denying Thomas’ first petition under the Uniform Post Conviction Procedure Act. This Court’s opinion on appeal from the original conviction is reported in Thomas v. State, 3 Md. App. 708 , 240 A. 2d 646 . Thomas, in his application for leave to appeal, contends that: (1) he was denied a speedy trial; (2) he was prejudiced by the State’s Attorneys’ informing the jury of his prior convictions; (3) he was prejudiced because the jury was allowed to take the indictment into the jury room during their deliberation; (4) his pretrial lineup was not fair and impartial; (5) the evidence was not sufficient to support the verdict; (6) his trial counsel was incompetent. —1— Speedy Trial Thomas was arrested on September 7, 1966 and re ²¹⁶ leased on bail on December 16, 1966.

Indictments were presented against him on February 9, 1967; he was convicted by a jury of uttering five checks on April 18, 1967. At no time during this period did Thomas ask for a speedy trial. This contention is but a bald allegation as there is nothing in the record to show that he made any effort for an earlier trial, or that he was in any way prejudiced. The lapse of time, of itself, was not sufficient to show the denial of a speedy trial.

Graham, v. State, 6 Md. App. 458 , 251 A. 2d 616 . —2— Prior Conviction When Thomas took the stand and testified at his trial, he was cross-examined by the State’s Attorney as to his prior convictions. By taking the stand, Thomas placed his character in issue and could then be questioned by the State’s Attorney as to his previous criminal convictions. Minor v. State, 6 Md. App. 82, 88 , 250 A. 2d 118 . Thomas cites Burgett v. Texas, 389 U. S. 109 , 88 S. Ct. 258 , 19 L.Ed.2d 319 to support his contention, alleging that the state did not establish that he had counsel at the prior trials.

A reading of Burgett, supra will show that the prior convictions in that case were declared void because Burgett had not been represented by counsel at those previous trials. See Suggs v. State, 6 Md. App. 231, 235 , 250 A. 2d 670 and Brown v. State, 4 Md. App. 623 , 244 A. 2d 471 . There is no allegation or testimony that Thomas was not represented by counsel at the prior trials. The mere fact that the state did not affirmatively establish that fact at the trial in question does not constitute grounds for post conviction relief. —3— Indictment This Court has held that it is not improper for the jury to take the indictment in the jury room for their deliberations, Darby v. State, 3 Md. App. 407, 411 , 239 A. 2d 584 . ²¹⁷ —4— Lineup Thomas contends that the State,