Opinion
[App. No. 29, September Term, 1960.]
Decided January 18, 1961.
POST CONVICTION PROCEDURE ACT — Evidence, Suppression Of — No Foundation For Claim Of. Where a petitioner for post conviction relief, after being convicted of assault and battery, charged suppression of evidence in that a knife allegedly taken from the prosecuting witness by the police was not offered in evidence, this Court found no foundation for the claim, pointing out, among other things, that the petitioner (who was represented by employed counsel of his own choice) had full knowledge as to the knife and its custody long before the trial, and ample opportunity, had he so desired, to have put the knife in evidence on cross-examination or otherwise, through either the prosecuting witness or a police officer. pp. 646-647
POST CONVICTION PROCEDURE ACT — Innocence Or Guilt — Evidence, Admission Of — Inconsistent Or Recanting Statements By Prosecuting Witness Before Or After Trial — These Matters Afford No Ground For Post Conviction Relief. p. 647
POST CONVICTION PROCEDURE ACT — Belated Appeal — No Basis For Allowing — Right Held Waived. This Court found no basis in the instant post conviction case for disturbing the finding of the court below rejecting the petitioner's claim of ignorance of his right to appeal, holding that through non-exercise of the right it was waived, and that there was no basis for allowing a belated appeal. p. 647
POST CONVICTION PROCEDURE ACT — Transcript Of Original Trial Proceedings Would Be Of No Material Use — No Occasion For Appointment Of Counsel In This Matter. pp. 647-648
J.E.B.
Decided January 18, 1961.
Lawrence A. Duffin instituted a proceeding under the Post Conviction Procedure Act, and from a denial of relief, he applied for leave to appeal.
Application denied.
Before BRUNE, C.J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.
The applicant, Lawrence Duffin, was tried in the Circuit Court for Montgomery County before the court (Shure, J.) and a jury on charges of assault with intent to murder and assault and battery. The jury found him guilty on the assault and battery charge, but not guilty of assault with intent to murder. He had a past record (for shooting a sister of the prosecuting witness, for which he received a six year sentence and served more than four and a half years) and was sentenced to five years' imprisonment on the recent offense.
In his amended petition under the Uniform Post Conviction Procedure Act (the Act), filed through his counsel appointed thereunder, and in an affidavit accompanying it, he alleged violation of State and Federal constitutional rights of due process and against self-incrimination. He also alleged that due to ignorance and lack of education he was unable to note and perfect an appeal and was incapable of waiving his right of appeal.
In support of his claims of denial of constitutional rights he alleged, in effect, suppression of evidence and improper admission of his past record. He also sought to raise matters going to the question of guilt or innocence.
His charge of suppression of evidence is based upon the fact that a knife taken from the prosecuting witness, Loretta Jane Mahoney, by the police was not offered in evidence. Duffin's own statement regarding this matter is thus set forth in a document headed "Contentions" which accompanied his original petition: "that Loretta Jane Mahoney was armed with a knife at the time of the alleged `assault' and that such knife was taken from her person by arresting officers. That further such knife, while shown at the Hearing was not a part of the evidence at Petitioner's trial and that such knife is in the hands of the police authorities now." Whether the "hearing" referred to was a preliminary hearing or the actual trial is not clear. Whichever it was, Duffin had full knowledge with regard to the knife and its custody long before his trial. He was represented by counsel of his own choice whom he had employed about six months before the trial. It would seem clear that the defendant had ample opportunity, had he so desired, to have put the knife in evidence on cross-examination, or otherwise, through either Loretta J. Mahoney or the police officer. In view of the above statement by Duffin and in view of the other facts just stated, we see no foundation for a claim of suppression or concealment of evidence by the State. Cf. Whitley v. Warden, 222 Md. 608, 158 A.2d 905.
Other matters raising questions of innocence or guilt, of the admission of evidence, or of inconsistent or recanting statements made by the prosecuting witness before or after Duffin's trial, afford no ground for post conviction relief. See State v. D'Onofrio, 221 Md. 20, 155 A.2d 643.
The principal question in this proceeding, as Duffin's counsel stated in the trial court, is whether or not Duffin had waived his right of appeal. As to that matter we see no basis for disturbing the finding of Judge Lawlor rejecting Duffin's claim of ignorance of his right of appeal — a right which is given by statute and the exercise of which by an indigent defendant at State expense is provided for by statute. Through non-exercise of the right of appeal, that right was waived, and we see no basis for the allowance of a belated appeal.
Nor do we see how a transcript of the proceedings at the original trial, which the applicant sought, would be of any material use in this case. (See Ellinger v. Warden, decided contemporaneously herewith, 224 Md. 648, 167 A.2d 334.) Neither do we see any occasion for the appointment of counsel for the applicant in this matter, which he also requested.
Application denied.