Application for leave to appeal from the Circuit Court for Frederick County (MOORE, J.).
Samuel Veney, convicted by a jury in the Circuit Court for Frederick County of murder in the first degree after removal from Baltimore City and sentenced to death by the administration of lethal gas, filed a petition for relief under the Post Conviction Procedure Act. From a denial of relief, he applies for leave to appeal.
Application denied.
Before HAMMOND, C.J., and BARNES, McWILLIAMS, FINAN, SINGLEY and SMITH, JJ.
PER CURIAM.
The petitioner, Samuel Veney, was convicted by a jury in the Circuit Court for Frederick County of murder in the first degree and on May 16, 1966, was sentenced by that court to death by the administration of lethal gas. We affirmed the judgment on October 15, 1968, in Veney v. State, 251 Md. 182, 246 A.2d 568. The Supreme Court of the United States denied certiorari on April 1, 1969. Veney v. Maryland, 394 U.S. 948, 89 S.Ct. 1284, 22 L.Ed.2d 482.
The petitioner on April 24, 1969, filed a petition for relief under the Post Conviction Procedure Act, Code (1957), Art. 27, § 645 A et seq., and later filed a supplemental petition on July 9, 1969. The Honorable John P. Moore, one of the judges of the Circuit Court for Montgomery
County, was assigned that case pursuant to Maryland Rule 1202 b 1 and on November 14, 1969, held a hearing at which time the petitioner was represented by counsel, William R. Leckemby, Jr. Judge Moore considered eleven grounds for post conviction relief raised in a combination of the first petition of April 26, 1969, the supplemental petition of July 9, 1969, and a ground raised at the hearing. Judge Moore in a comprehensive and well reasoned Memorandum Opinion, filed February 24, 1970, carefully considered these eleven grounds and concluded that there was no ground upon which to grant post conviction relief. Accordingly he passed an order dated February 20 and filed on February 24, 1970, denying the petition. The petitioner, pursuant to Art. 27, § 645-I and Maryland Rule BK46 has applied to this Court for leave to appeal.
We have carefully considered the grounds for relief asserted by the petitioner and, for the reasons set forth in Judge Moore’s Memorandum Opinion and Order, have concluded that leave to appeal should be denied. We direct the reporter to print as an appendix to this opinion Judge Moore’s Memorandum Opinion and Order filed February 24, 1970.
APPENDIX
IN THE CIRCUIT COURT FOR FREDERICK COUNTY, MARYLAND
SAMUEL VENEY :
VS. : Miscellaneous Petition No.
STATE OF MARYLAND : 3748 MEMORANDUM OPINION AND ORDER
This is a petition for post conviction relief from a first
degree murder conviction by a jury in Frederick County. The
indictment against the petitioner was filed on November
Page 439
26, 1967, in the Circuit Court for Baltimore City. The case was
removed to Frederick County pursuant to his request for removal.
A further motion for removal was denied on March 29, 1966, and
the petitioner was convicted by a jury in the Circuit Court for
Frederick County after a five day trial from April 11 to April
15, 1966 before Judge Dudley Digges, then Chief Judge of the
Seventh Judicial Circuit (now Associate Judge of the Court of
Appeals) and Judge Robert E. Clapp, Jr. On May 16, 1966 the Court
sentenced the petitioner to death by the administration of lethal
gas. The defendant appealed and the Court of Appeals affirmed the
judgment unanimously on October 15, 1968. 251 Md. 182,
246 A.2d 568.
The instant petition for post conviction relief was filed with
the Circuit Court for Frederick County on July 9, 1969. The
matter was assigned to this member of the Circuit Court for
Montgomery County pursuant to Maryland Rule 1202 B, and a hearing
on the petition was held in the Circuit Court for Frederick
County on November 14, 1969.
The underlying facts in the case were summarized by the Court
of Appeals as follows:
“At approximately 9:40 P.M. on December 24, 1964,
Luxie’s Liquor Store at 2002 Greenmount Avenue in
Baltimore City was robbed. Several men were involved.
Appellant was identified as one of those men. Lt.
Maskell of the Baltimore City Police Department
arrived on the scene, accosted appellant, and was in
the process of taking him into custody when one of
the robbers shot Lt. Maskell. Lt. Maskell was shot a
second time. Appellant was identified as firing the
second shot. Lt. Maskell was not fatally wounded. The
culprits escaped. Between 10:00 and 11:00 P.M.
appellant and others alleged to have been involved
were at the home of appellant’s sister. Discussion of
the incident took place. Appellant stated, `I think I
shot him, too.’
Page 440
Sgt. Jack Cooper was one of those searching for the
participants in the robbery and shooting of Lt.
Maskell. Sgt. Cooper was seen at approximately 4:20
A.M. on December 25 by fellow officers. A few minutes
later shots were heard from the direction in which
Sgt. Cooper had gone. He was found fatally wounded
near his police car, lying across an alley, face
down, in an unconscious condition. The dome light of
his car was on. The driver’s door was open. The
microphone of the radio was lying on the front seat.
The motor vehicle operator’s license of appellant
was picked up from the floor of the police car. Just
outside the car on the driver’s side under the open
door were found the Social Security card, Selective
Service card and birth certificate of appellant,
together with a number of other papers connected with
appellant.” 251 Md. at 185, 246 A.2d at 570.
Other important facts are that a verbal admission of shooting a
police officer was overheard by a witness who identified the
speaker’s voice as that of the petitioner; that the petitioner
had been seen with a gun before and after the Cooper shooting;
and lastly that his gun had been identified as the gun that had
fatally wounded Sgt. Cooper and had wounded Lt. Maskell.
The petition of Samuel Veney of April 26, 1969, and his
supplemental petition filed July 9, 1969, raise ten distinct
grounds for post conviction relief, and an eleventh was raised at
the hearing of November 14, 1969:
1. That petitioner was denied due process of law when
the jury was allowed to separate before the verdict.
2. That the petitioner, a male, is the victim of
unconstitutional sex discrimination since the state
for nearly thirty years allegedly has not sought the
death penalty in the case of any female accused of
crime.
Page 441
3. That the petitioner was the victim of an attempted
unlawful arrest.
4. That his conviction was based on insufficient
evidence.
5. That the denial of a change of venue from the
Circuit Court for Frederick County was wrongful in
light of the publicity which surrounded not only his
trial but also the earlier trial in Frederick of his
brother, Earl.
6. That the petitioner was denied his right to a
speedy trial and held incommunicado without counsel.
7. That the petitioner was prejudiced by the
introduction of testimony allegedly inadmissible
because it (a) consisted of an unreliable voice
identification, and (b) was allegedly coerced from
the witness under threat of criminal prosecution.
8. That the petitioner’s counsel failed to subpoena a
defense witness whom petitioner wished to have
testify on his behalf.
9. That petitioner was denied due process because the
trial court allegedly refused to allow petitioner’s
counsel to poll the jury following the reception of
the jury’s verdict.
10. That the petitioner was the victim of a
prejudicial in-court characterization by the state’s
attorney.
11. That the petitioner was denied his right to
present his own defense because he was not present at
a conference in Chambers prior to the trial at which
the ground rules for the conduct of the trial were
established.
While contentions numbered seven, eight and ten merit more than
routine consideration, it is the first point, the allegedly
improper separation of the jury, that the petitioner most
strenuously urged upon the Court. The jury was permitted to
separate each day during the four day
Page 442
trial at the luncheon, dinner and overnight recesses, but was not
allowed to do so after the case had been submitted to them for
their deliberation upon a verdict. The case is therefore clearly
within the scope of Maryland Code, Article 51, § 22 (Supp.
1969), which provides:
“The jurors sworn to try a criminal action may, at
any time before the submission of the case to the
jury, in the discretion of the court, be permitted to
separate or may be kept in charge of proper
officers.”
The petitioner recognizes the applicability of this provision,
but claims that the trial court abused its discretion in
permitting the jury to separate in the face of allegedly harmful
publicity to which the jurors in Frederick were claimed to be
exposed during the periods of their separation. The petitioner
makes no attempt to demonstrate actual prejudice in his case, but
argues that prejudice must be presumed from the jurors’ exposure
to stories and reports concerning the petitioner’s trial.
The Court finds no merit in this contention. In light of the
discretion reposed in trial courts by Maryland Code, Article
51, § 22, there can be no presumption that separation prior to
the submission of the case to the jury has prejudiced the rights
of the person standing trial. As the Court of Appeals stated in
Midgett v. State, 223 Md. 282, 295-96, 164 A.2d 526 (1960),
cert. denied, 365 U.S. 853 (1961), “the separation of the jury
is permissible, in the discretion of the trial court, prior to
submission, and . . . prejudice is not to be presumed from such
separation simply because of the possibility of influence or
contamination through outside contacts.” Accord, LaGuardia v.
State, 190 Md. 450, 58 A.2d 913 (1948). As pointed out in a
thorough annotation entitled “Separation of jury in criminal
case,” in 21 A.L.R.2d 1088, 1117, supplementing 34 A.L.R. 1115
and 79 A.L.R. 821, “it is regarded as settled” that where
separation is within the discretion of the trial court, no
prejudice can be presumed if the jury is allowed to separate.
Page 443
Our refusal to make an assumption of prejudice in this case is
buttressed by two additional considerations: first, as reflected
in a joint stipulation made at the hearing on this petition, the
petitioner’s counsel explicitly advised the trial court outside
the jury’s presence that there would be no request that the jury
be sequestered during the trial; secondly the trial court prior
to each separation very carefully admonished the jury against
discussing or reading about the case. The courts in this State
have adhered to the rule that there shall be no presumption of
prejudice even where these additional factors were not present.
In Graef v. State, 1 Md. App. 161, 170, 228 A.2d 480 (1967),
for example, the defendant’s trial counsel strenuously objected
to the separation of the jury. The Court of Special Appeals
nevertheless affirmed the rule that prejudice must be
demonstrated and is not to be assumed merely from the fact of
separation where there is a possibility of influence or
contamination from outside contact. On the other hand, where
trial counsel does consent to separation, it is especially clear
that the defendant has the burden of showing prejudice. In Near
v. Commonwealth, 202 Va. 20, 116 S.E.2d 85 (1960), for example,
the defendant in a murder prosecution consented to separation,
and the court accordingly held that there could be no presumption
of prejudice and that the defendant would have the burden of
showing actual harm. An analogous rule prevails in federal
courts, where a defendant’s right to have a jury kept together
may be waived or lost due to failure to object to the jury’s
separation. Stern v. United States, 219 F.2d 263 (4th Cir.
1955).
Maryland Code, Article 51, § 22 does not explicitly
require that the trial court admonish the jury to observe silence
and avoid outside contacts at each separation during the trial,
and the Court of Appeals has adhered to the requirement that the
defendant demonstrate prejudice even where the trial court at
several recesses has failed to give an appropriate caution or
admonition. E.g., Midgett v. State, 223 Md. 282, 164 A.2d 526
(1960), cert. denied, 365 U.S. 853 (1961). In the instant case,
as
Page 444
indicated above, the trial court at each separation gave thorough
and painstaking admonitions to the jury. At the conclusion of the
first day’s session, during which the court and counsel
participated in the selection of a jury, the court admonished the
jury as follows:
“Members of the jury, we are going to stop now for
the day. We have two alternate jurors to be selected
tomorrow. We ask that you meticulously follow the
following instructions that we are going to give you.
You are not to talk to anyone about the case. By that
I mean your families, or anyone else. You are to talk
to no one. You are to allow no one to talk to you
about it. You are not to get close enough to anyone
that might be discussing it. You are not to read any
newspaper accounts whatsoever. You are not to watch
any accounts that may appear on television nor are
you to listen to any radio accounts concerning this.
When I say that, I mean in the very broad sense,
whether it happens to be the local newspaper, the
local radio station, or from any other source, such
as Baltimore or Washington newspapers or television
accounts or from any source. You are not to talk to
anyone about or allow anyone to talk to you about it
or are you to get close enough to anyone that might
be discussing it. You are to read no accounts or
listen to any accounts nor to view any accounts. If
you will follow these instructions meticulously — and
when I say not to talk to anyone, I want to impress
upon you not to discuss it with members of your
family — with your wives or husbands or children or
anyone whatsoever. That would encompass all that. And
we will begin tomorrow morning at 9:30. When you
arrive tomorrow morning or whenever you do arrive, if
it is early or what, go immediately to the jury room
and do not remain in the corridors
Page 445
or downstairs. When you come on the courthouse
grounds, go immediately to the jury room and wait
until we send for you.
Mr. State’s Attorney, any further instructions you
want to give?
ROTHENHOEFER (State’s Attorney): Nothing further,
Your Honor.
COURT: Mr. Hargrove?
HARGROVE (Defense Counsel): Nothing further, Your
Honor.” (Tr. at 116)
Throughout the trial similar admonitions were given to the jury.
(See, e.g., Tr. 166, 221, 275-76, 324-25, 409, 427, 476, 513,
544-45). Where such admonitions are given, courts in Maryland
insist on a showing of prejudice even where the counsel for the
defendant can demonstrate to the court that newspaper accounts
which could be prejudicial to the defendant’s case are in
circulation. In Graef v. State, 1 Md. App. 161, 228 A.2d 480
(1967), for example, the Court noted, after citing an admonition
similar to that given in the instant case, that the defendant had
made no showing that the articles were actually prejudicial, nor
that any of the jurors had read such articles, nor lastly that
these articles or any other publications had had any influence
upon any single juror. The same is true in the instant case. We
therefore conclude that the jurors adhered to the stern
admonition given by the trial court and that consequently the
defendant suffered no prejudice on account of the jury’s
separation in the course of trial.
Even if we were permitted under the applicable Maryland law to
infer prejudice from the fact of separation in a widely
publicized capital case, such an inference would not be
appropriate on the basis of the record before us. Unlike the
publicity which surrounded the trial in Sheppard v. Maxwell,
384 U.S. 333 (1966), a case strongly relied on by the petitioner,
the publicity in the instant case did not include prejudicial
matter which had not been introduced into evidence. In the
Sheppard case on the
Page 446
other hand, many of the stories in the five volumes of clippings
regarding the case involved matters which the prosecution made
available to both local and national news media without securing
their admission into evidence. The Sheppard case is further
distinguishable in that the trial judge in that case allowed the
press to inject a carnival or circus atmosphere into the court
proceedings. A press table running the entire width of the
courtroom was set up inside the bar. Members of the press, radio
and television were allowed to congregate in unlimited numbers
and were completely unrestrained in their news gathering
activities. The jurors in that case were given woefully
inadequate directions on their conduct during recesses —
directions which were advisory rather than mandatory in tone, and
which were so lightly treated by the jurors that they granted
members of the press corps expansive interviews disclosing the
testimony that had been heard by them in the course of the trial.
The trial in the case of Marshall v. United States, 360 U.S. 310
(1959), also cited by petitioner, was marked by similar
abuse. Highly prejudicial matters, ruled inadmissible at trial,
were published in the press, and the record disclosed that the
jurors had read them.
The instant case is far different. The decision to allow the
jury to separate came only after the Court, having already
carefully considered a pre-trial motion for removal from
Frederick County, took great pains on voir dire examination to
evaluate the nature of the publicity that had surrounded and was
likely to surround the petitioner’s trial, and satisfied itself
that the jurors eventually chosen were not those who would form
an opinion regarding the guilt or innocence of the accused on the
basis of newspaper or other reports. Even if the jurors in the
instant case did not strictly adhere to the Court’s admonitions
against reading or hearing about the case in which they were
sitting, there is no basis for inferring that the jurors were
exposed to severely prejudicial materials. At the hearing on this
petition, counsel for the petitioner introduced several pages of
articles dealing
Page 447
with one or more aspects of the case against the petitioner. Only
six of the articles were published during the time that the jury
was hearing the case. None of these contained material which was
not admitted at trial; nor, in the Court’s judgment, did they
exaggerate or distort the testimony introduced against the
petitioner by the witnesses for the State. The petitioner has
consistently claimed that he was prejudiced by the adverse
publicity surrounding his brother’s earlier trial for crimes for
which the petitioner was also indicted, but none of the articles
published during the trial made more than a passing reference to
Earl Veney’s case. In sum, regardless of where the burden lies on
the issue of separation, we would be inclined on the basis of the
articles tendered by the petitioner to conclude that prejudice
was unlikely to accrue from the publicity which surrounded his
trial.
The petitioner raises two grounds in support of his contention,
listed as item seven above, that he was unduly prejudiced by the
introduction of the testimony of Frances Mitchell, a critical
prosecution witness in this case. The Court’s threshold reaction
to this contention is that the admissibility of a witness’
testimony, except where there is a claim that the testimony is
perjured, is not a ground that may be raised in a post conviction
proceeding since it is available on appeal. The petitioner in his
appeal raised two distinct arguments regarding the introduction
of certain evidence against him. He did not at that time raise
any objection to the admission of the testimony of Mrs. Mitchell.
Under Maryland Code, Article 27, § 645A(c), an allegation
of error “shall be deemed to be waived when a petitioner could
have made, but intelligently and knowingly failed to make, such
allegation before trial, at trial (or) on direct appeal . . .,
unless the failure to make such allegation shall be excused
because of special circumstances.” The burden of proving special
circumstances is explicitly placed upon the petitioner under this
subsection, and we note that the petitioner has offered no
rationale for his failure on appeal to raise his objections to
the introduction of Mrs. Mitchell’s
Page 448
testimony. In this regard see and compare Smith v. Warden,
4 Md. App. 550, 243 A.2d 897, cert. denied, 393 U.S. 989 (1968),
where the Court of Appeals declined to allow a petitioner to
object to the use of illegally obtained evidence since such
objection could have been raised on appeal.
Even if it were reviewable on its merits, the petitioner’s
contention regarding the admission of Mrs. Mitchell’s testimony
is clearly insubstantial. He first argues that her testimony
should not have been admitted because it was made under threat of
a twenty year term of imprisonment if she failed to testify (See
tr. 241). Petitioner does not claim that the coercion against
Mrs. Mitchell resulted in her giving perjured testimony. Compare
Clark v. Warden, 293 F.2d 479 (4th Cir. 1961), cert. denied,
369 U.S. 877 (1962). The Fifth Amendment offers protection
against compelled self-incrimination, but there is no
constitutional guarantee against the introduction of testimony
given by another person under the threat of criminal prosecution.
Indeed, the doctrine of immunity rests upon the belief that the
state may use the promise of withholding criminal prosecution as
an inducement to testify against another. And every witness is
compelled to testify in the sense that he can be punished for
contempt of court unless able to invoke the Fifth Amendment. 17
Am.Jur.2d, Contempt § 29; compare the stern language of
Maryland Code, Article 35, § 16, repealed, 1962 Acts of
Assembly, Chapter 36, Section 1, wherein a mandatory jail
sentence was imposed for the failure of a witness in court to
give evidence. Where testimony is not freely given, its probity
is subject to evaluation by the trier of fact, but is certainly
not reviewable on a post conviction proceeding. See generally
Meadows v. Warden, 243 Md. 710, 222 A.2d 249 (1966); 7A MLE,
Criminal Law § 866.
The second objection to the introduction of Mrs. Mitchell’s
testimony is that it contained an allegedly unreliable voice
identification which was highly prejudicial to the petitioner.
The testimony in question concerns the authorship
Page 449
of an incriminating statement made by one of several persons
entering the house of Eloise Bennett, wherein Mrs. Mitchell and
Earl Veney, among others, had been sleeping on the evening of
December 25, 1964. The transcript of the testimony reads as
follows:
Q Did you stay with Earl after you got to Eloise
Bennett’s house?
A Yes.
Q And how long were you in his presence?
A All the time until daybreak.
Q Until daybreak?
A Yes.
Q You know about what time it was you left Earl’s
presence?
A It was about seven or eight.
. . .
Q Did you see at anytime when you were in Earl’s
presence that night, did you ever see him shoot a
gun?
A No, not Earl.
Q Now, after you and Earl and Ruth Wilson left Sam
down at Annie Brown’s house, did you at anytime later
that night or the next morning see or hear Sam again?
A Later that night I heard some people come in. But
I don’t know who came in first.
Q No, I asked you, did you, yourself, with your own
ears and eyes ever see or hear Sam again that
morning?
A Well, I didn’t see him.
Q Did you hear him?
A I believe I heard him.
Q Do you know his voice?
A Yes, I believe I could tell it.
Q Where was it you heard it?
A It was as I was leaving.
Q As you were leaving where?
A As I was leaving Eloise’s room for my home.
Page 450
Q As you were leaving Eloise’s. And what time was
it?
A About seven or eight.
Q About seven or eight in the morning. And what did
you hear Sam say?
. . .
Q What did you hear Sam say?
A I believe I heard him say he had to shoot him.
Q What were his words?
A That he had to shoot him. I never heard him say
who or what.
Q Did he say why?
A No, I heard him say something about an ID card.
Q An ID card?
A But I never seen him or he never said it in my
presence that he had shot anybody. Neither one ever
admitted it.
Q But they were the words you heard?
A Yes.
Petitioner claims that this was an improper identification, but
it appears to the Court that this question is one going to the
adequacy or sufficiency of the evidence and hence is not
reviewable in a post conviction proceeding. Rather, this
contention is governed by the numerous cases in which the Court
of Appeals has explicitly stated that the identification of the
petitioner is not subject to reconsideration in a petition for
post conviction relief. E.g., Washington v. Warden,
222 Md. 624, 161 A.2d 121 (1960).
An eighth contention raised by the petitioner is that his
counsel failed to summon a witness whom the petitioner desired to
testify in his behalf. The Clerk of the Circuit Court for
Frederick County stated upon inquiry by the Court at the hearing
on this petition that the witness in question, a Mr. Marvin, was
not summoned nor was a summons requested. The Court concludes,
however, that this contention must fail on its face since a
failure to call
Page 451
witnesses will only constitute a ground for post conviction
relief where the petitioner produces the alleged witnesses in
support of his claim that the denial was prejudicial to his right
to a fair trial. White v. Warden, 1 Md. App. 670, 232 A.2d 821
(1967). In the instant case the petitioner has not produced the
witness to substantiate the claim that such witness was essential
to a fair trial. Moreover, his proffer of what Mr. Marvin would
have testified does not persuade the Court that the availability
of the witness would have materially promoted the defendant’s
case. According to the petitioner’s testimony at the hearing on
this matter, Mr. Marvin would state that the petitioner and his
brother, Earl Veney, possessed identical guns. Petitioner infers
that it would be impossible to identify the petitioner’s gun as
the one from which the shot killing Sergeant Cooper was fired.
Even if it could be established that the two brothers owned the
same make and model of firearm, the petitioner has not given us
reason to believe that guns of similar or identical make are not
distinguishable by a ballistics expert. The petitioner has not,
in other words, met his burden of showing that the absence of the
witness in question was actually prejudicial to his right to a
fair trial. In this regard it is notable that the ballistics
expert testifying on behalf of the State positively identified
petitioner’s gun as that which fatally wounded Sergeant Cooper
and had wounded another officer, Lieutenant Maskell.
Petitioner’s tenth contention is that he was unfairly
prejudiced by a remark made by the State’s Attorney of Baltimore
City, characterizing him as one of the most famous brothers in
American history since the James boys. We find that this
contention is completely without merit. The challenged remark was
made at a pre-trial hearing on the petitioner’s motion to remove
the case from Frederick County. The remark was reported in the
local press, and was thus part of the publicity attending the
trial. However the prejudicial nature of the publicity before or
about the time of the petitioner’s trial was thoroughly
considered by the Court of Appeals. It concluded
Page 452
that the publicity was not of such a nature as to require the
removal of the case from Frederick County in order to afford the
petitioner a fair trial. Besides being generally adjudicated in
final fashion by the Court of Appeals, the substance of this
contention of the petitioner was given most thorough scrutiny by
the trial court in their examination on voir dire of each juror.
The trial court took great care that the remark would not work to
the prejudice of the petitioner. Furthermore, in light of the
Court’s frequent insistence that the jury limit their attention
to matters introduced at trial and exclude all outside materials
of whatever kind, the State’s Attorney’s pre-trial remark did not
amount to a denial of the petitioner’s right to a fair trial.
Four additional grounds raised by petitioner, numbered above as
items three, four, five and eleven, are clearly beyond the scope
of post conviction relief. Regarding item three, it is noteworthy
that the petitioner does not assert that his arrest in New York
at a Long Island zipper factory on March 11, 1966 was illegal or
without probable cause, since his claim is that he was the object
of an attempted rather than an actual unlawful arrest. Such
alleged attempt presumably came in the wake of the various theft
crimes and the assault with intent to murder for which the
petitioner and others were subsequently indicted, but
petitioner’s contention in this regard offers no ground for post
conviction relief because it is devoid of any supporting factual
allegations. The Court is left to guess at what he means; his
claim is accordingly deficient. See Wilmer v. Warden,
244 Md. 718, 224 A.2d 106 (1966). In addition, it is well settled that an
illegal arrest is of no avail in a post conviction proceeding
unless illegally seized fruits of that arrest are offered in
evidence against the defendant at trial. E.g., Jackson v.
Warden, 235 Md. 689, 202 A.2d 757 (1964); Knox v. Director,
1 Md. App. 678, 232 A.2d 824 (1967). Assuming that the attempted
illegal arrest complained of was the incident giving rise to the
petitioner’s killing of Sgt. Cooper, there was no evidence “come
at by exploitation
Page 453
of that illegality” such as would enable this Court to invoke the
protective rule of Wong Sun v. United States, 371 U.S. 471
(1963). At least as respects the prosecution for the murder of
Cooper the finding of the petitioner’s identification cards near
the body was patently fortuitous rather than the result of a
conscious police effort to exploit the alleged illegality of
Cooper’s initial detention of the petitioner. Lastly, there is no
reason offered for petitioner’s failure to raise this contention
on appeal, and we accordingly find that it has been waived. See
Hines v. Warden, 236 Md. 406, 204 A.2d 176 (1964).
Petitioner’s contentions regarding the sufficiency of the
evidence and change of venue were thoroughly considered in the
Court of Appeals opinion of Judge Smith, 251 Md. 182,
246 A.2d 568 (1968). We are therefore precluded from considering them on a
petition for post conviction relief. Maryland Code, Article
27, § 645A(a), (b). Of course, under no circumstances could
such relief be based on the alleged insufficiency of the evidence
at trial. See Boucher v. Warden, 5 Md. App. 51, 245 A.2d 420
(1968); Williams v. Director, 4 Md. App. 721, 245 A.2d 105
(1968).
Petitioner’s eleventh point, raised solely at the hearing on
this petition, is that he was denied his right to be present at a
pre-trial meeting at which the court and counsel reached
agreement regarding certain procedures to be followed at trial.
This allegation affords no basis for relief because no law,
federal or state, provides that the right to be present at trial
extends to conferences between the judge and counsel in chambers.
Martin v. State, 228 Md. 311, 179 A.2d 865 (1962) (arguments of
law); see Brown v. Pepersack, 217 F. Supp. 547 (D. Md. 1963),
aff’d., 334 F.2d 9 (4th Cir.), cert. denied, 379 U.S. 917
(1964); Brown v. State, 225 Md. 349, 170 A.2d 300 (1961),
cert. denied, 372 U.S. 960 (both dealing with consideration of
jury instructions). Nor does such right apply to matters which
are purely preliminary in nature. People v. Isby, 30 Cal.2d 879,
186 P.2d 405, 414 (1947). In the instant case, petitioner
does not claim prejudice
Page 454
from any matter considered in the pre-trial meeting except the
agreement to allow the jury to separate during trial. As already
noted above, this matter is discretionary with the Court and
under the facts in this case did not go the fairness of the
petitioner’s trial. Consequently, petitioner’s absence from the
session at which the agreement regarding separation was reached
is not of constitutional dimensions. See Snyder v.
Massachusetts, 291 U.S. 97 (1934).
Of the remaining grounds asserted by petitioner, two have been
withdrawn and one is frivolous. Denial of speedy trial and
assistance of counsel, and alleged refusal of the trial court to
allow counsel to poll the jury, items 6 and 9 respectively, were
explicitly withdrawn by the petitioner at the hearing on this
petition. Petitioner’s counsel concurred in this withdrawal, and
we are convinced that it was made in an intelligent and knowing
fashion. Besides being waived, these two grounds are clearly
without any support in the record before us. Petitioner has not
specified the time during which he was allegedly held without
counsel. Nor was any incriminating statement made in the course
of custodial interrogation sought to be introduced against him.
With respect to the promptness of petitioner’s trial, the record
shows that he was indicted on November 26, 1965 and was brought
to trial on April 11, 1966. This period of delay was occasioned
by the petitioner’s own defense tactics, and in any event is
clearly insubstantial. Compare Keyes v. State, 236 Md. 74,
202 A.2d 582 (1964); Stevenson v. State, 4 Md. App. 1, 241 A.2d 174
(1968). The Court also notes that this is not a case in which the
petitioner was denied his right to poll the jury. Following the
reception of the verdict at 11:55 P.M. on April 16, 1966, the
trial court inquired of defense counsel whether he wished to have
the jury polled. Counsel responded, “Yes, Your Honor, we so
request,” and the transcript shows that at that point the jury
was polled by the Court without objection. (Tr. 560-61).
The last contention to be considered is petitioner’s
Page 455
claim that he has been discriminated against by reason of his sex
since the State has for nearly thirty years declined to seek the
death sentence in cases involving female defendants. It is
noteworthy that the petitioner has supplied no factual basis for
believing that the death penalty has not been sought during this
period with respect to females accused of crimes. Even if this
were established, however, the Court is not persuaded that such a
practice would be violative of due process or equal protection.
The practice is not prescribed by any formal state policy.
Maryland Code, Article 27, § 407, the provision covering
first degree murder, is not by its own terms applicable only to
males. Nor does the petitioner point to any executive order
excluding the application of this section to females. Moreover,
there is no indication that a failure of the state’s attorneys to
seek capital punishment constitutes an abuse of their inherent
discretion in the discharge of their prosecutional
responsibilities. See 42 Am. Jur., Prosecuting Attorneys § 14,
16.
ORDER
For the aforegoing reasons, it is by the Court this 20th day of
February, 1970
ORDERED, that the Petition of Samuel Veney for Post Conviction
Relief be and the same hereby is DENIED.
/s/ John P. Moore
Judge of the Circuit Court
for Frederick County, Maryland
Filed February 24, 1970