Tull v. Warden

Hammond, C. J., delivered the opinion of the Court. In the early hours of September 25, 1961, James Omar Tull shot and killed his father-in-law, Paran Dashiell, and clubbed his wife to death with the butt of the gun. The crimes occurred in Somerset County and the case charging Tull with the murder of his wife was removed to Dorchester County, where a jury found him sane at the time of the commission of the crime (two psychiatrists at Clifton Perkins Hospital testified that he was sane, had the capacity to tell right from wrong and could understand the consequences of his acts; a third psychiatrist at the hospital, Dr. Prado, testified diametrically to the contrary) and guilty of murder in the first degree. He was sentenced to death after a motion for a new trial had been denied.

In Tull v. State, 230 Md. 596 , the Court of Appeals affirmed the judgment on February 12, 1963, the mandate being received by the Circuit Court for Dorchester County on March 15,1963. On April 16, 1963, Tull filed a second motion for a new trial, asserting that the “major defense” at his trial was that he was insane at the time of the crime and that he had ascertained that in addition to Dr. Prado, an em ³⁰¹ ployee of Clifton Perkins Hospital, one Ralph P. Oropollo, a clinical psychologist, thought he was insane. The Circuit Court stayed execution, heard Mr. Oropollo and a year later granted Tull’s motion and ordered a new trial. The State appealed, and in State v. Tull, 240 Md. 49 , the Court of Appeals reversed, holding that the trial court had no power to grant a new trial at the time it did so.

We treated the motion as a petition for post conviction relief and the appeal as a motion for leave to appeal, and on August 20, 1965, held that Tull had presented no grounds for relief, saying: “We find no violation of or any affront to any fundamental or basic right of Tull, common law or constitutional, which made his original trial unfair or invalid.” Tull sought relief in the United States District Court for the District of Maryland on a writ of habeas corpus and on December 12, 1967, Judge Northrop denied his petition. In a memorandum decision filed on October 2, 1968 by Judges Sobeloff, Haynsworth and Butzner, the Court of Appeals for the Fourth Circuit dismissed the appeal, saying: “The petitioner’s reliance on Schowgurow, however, does not provide a basis for relief. The petitioner’s conviction became final in 1963, and Schowgurow, which was decided on October 11, 1965, was given only prospective application by the Maryland Court of Appeals. This court upheld the validity of the Maryland decision not to apply Schowgurow retroactively.

Jacobs v. Brough, 375 F. 2d 606 (4th Cir. 1967). Therefore, Tull cannot base a claim for relief on Schowgurow.” On April 11, 1968, Tull filed a petition for habeas corpus in Dorchester County. Subsequently, after counsel were appointed, the petition was treated and decided as a post conviction case. In the petition (and two supplements) Tull makes contentions which may be summarized thus: (1) he was not given a fair trial; (2) his ³⁰² trial counsel were incompetent; and (3) his confession was involuntary and should not have been received at his trial.

Tull primarily relies on the claim that the jury which convicted him was unfairly constituted because it excluded all jurors, otherwise qualified, who did not profess a belief in God, citing Schowgurow v. State, 240 Md. 121 . He claims that his conviction did not become final until ninety days after August 20, 1965 (the date this Court reversed the lower court’s grant of a new trial), and therefore under Schowgurow , which was decided on October 11, 1965, he was entitled to a new trial. The United States Court of Appeals for the Fourth Circuit in Jacobs v. Brough, 375 F. 2d 606 , upheld the determination of this Court not to apply Schowgurow retroactively but rather only to convictions that had not become final on October 11, 1965. We agree with the United States Court of Appeals for the