James Bowler v. Warden, Maryland Penitentiary, 334 F.2d 202, 4th Cir. (1964)

334 F.
2d 202
James BOWLER, Appellant,

v.
WARDEN, MARYLAND PENITENTIARY, Appellee.
No. 9189.
United States Court of Appeals Fourth Circuit.

Argued January 22, 1964.
Decided June 10, 1964.
Norwood B. Orrick, Baltimore, Md. (Court-assigned counsel), for

appellant.
Robert C. Murphy, Asst. Atty. Gen. of Maryland (Thomas B. Finan, Atty.
Gen., of Maryland, on brief), for appellee.
Before SOBELOFF, Chief Judge, J. SPENCER BELL, Circuit Judge, and
MICHIE, District Judge.
J. SPENCER BELL, Circuit Judge.
The petitioner, James Bowler, appeals from an order of the district court
discharging his pro se petition for a writ of habeas corpus after a plenary
hearing. Bowler's pro se petition raised at least two issues. It alleged that the
trial court erred in admitting a statement made by Bowler to the police because
the petitioner was unlawfully under arrest at the time the statement was made.
This issue was exhaustively briefed and argued by assigned counsel both here
and in the district court. Since we affirm the court's finding that the prisoner
was lawfully arrested, we do not reach this issue. The pro se petition also
alleged incompetence of his assigned state trial counsel.1 The following facts
alleged by the petition or disclosed by the record tend at least on their face to
support the charge:
(1) Trial counsel stipulated that the statement which habeas counsel now
contests as improperly admitted was freely and voluntarily signed by the
petitioner. The petitioner, a Negro, alleges that he was coerced into signing the
statement by police threats that he had better confess to burglary and larceny to
avoid a charge of raping a white woman. He further alleges that the statement
was inaccurately transcribed by the police who refused to incorporate anything
therein which reflected on the morals of the white prosecutrix. Habeas counsel
briefed and argued here these points as they affected the admissibility of the
statement but not with respect to the charge of incompetence of counsel. When
petitioner was allowed to make a statement at the habeas hearing with respect
to the charge of incompetence of counsel neither his attorney nor the court
made any effort to elicit testimony on this issue.
3
(2) Petitioner also alleges that he was tried jointly with one George Terry
Young, a Negro, who was charged by the white prosecutrix with the capital
offense of rape. The trial record shows that no motion to sever was made. It
was apparent that the petitioner would be seriously prejudiced by the joint trial
and would have been entitled to a severance under the state law if such
prejudice were shown. Cf. Day v. State, 196 Md. 384, 76 A.2d 729 (1950). The
record contains no explanation for the failure to make the motion.
Bowler was jointly indicted with Earl Boston and Young in the Criminal Court
of Baltimore City on five counts charging them, inter alia, with breaking and
entering on November 29, 1960, in the daytime, with felonious intent, the
dwelling of Mrs. Freddie Jean Johnson (a misdemeanor Ann.Code of Md.,
Art. 27, 32 (1957)), and with the felonious larceny of certain goods, including
a combination stereo hi-fi record player belonging to Mrs. Johnson (a felony
Ann.Code of Md., Art. 27, 340 (1957)). Young was separately indicted for
rape and assault upon Mrs. Johnson during the course of the burglary and
larceny.
Young's counsel was privately employed. Counsel was appointed by the court
to represent Bowler and Boston. No severance was requested, and the cases
were tried together before the court without a jury. Bowler and Boston were
found guilty on all counts of the indictment except the receiving count, and
each was sentenced to ten years imprisonment. Young was found guilty of
burglary and rape, and a death sentence was imposed.2
No appeal was taken by Bowler, but Young's conviction was affirmed. Young
v. State, 228 Md. 173, 179 A.2d 340 (1962).
Bowler filed an application under the Maryland Uniform Post Conviction

Procedure Act, Ann.Code of Md., Art. 27. 645A-645J (1959), raising nine
points. His application was denied by the Criminal Court of Baltimore, and
leave to appeal was denied by the Court of Appeals of Maryland. Bowler v.
Warden, 228 Md. 662, 180 A.2d 878 (1962).

8
On November 30, 1960, Mrs. Johnson reported to the police that on November
29th at about 3:30 in the afternoon her apartment at 2420 North Charles Street
in Baltimore had been entered, that she had been raped, and that a Motorola
record player of a specified style and color, a clock radio, and a suitcase had
been taken. She said that only one man had entered her bedroom, but that she
heard noises in the background which indicated that one or more other men
were in the apartment. At the trial she testified that she never saw any of the
persons in her apartment because her face was covered with a garment and that
only one of the men raped her, and that she did not know what the others were
doing. She later identified Young in the police line-up by his voice.
On December 1, the police were advised that a record player exactly answering
the description of the one reported stolen from Mrs. Johnson had been pawned
on Pennsylvania Avenue, in Baltimore, by one George Terry Young. The
police arrested Young at 3:00 a. m. on December 2, and at about 10:30 a. m.
Young told the police that while he was walking on Pennsylvania Avenue a
stocky, wooly-haired, brown-skinned man, wearing a red sweater, known to
Young as "Walt," asked Young for some "identification" so that he could pawn
a record player which he and "Earl" had stolen, and Young loaned Walt his
"union book" to serve as such identification. Young said he did not know Walt's
full name or address, but that Earl, who lived at 1512 Eutaw Place, knew Walt.
A uniformed sergeant of police and two detectives promptly went to 1512
Eutaw Place, where they were told that within the past few days Earl Boston
had moved from 1512 to 1502 Eutaw Place. The three policemen went
immediately to 1502 Eutaw Place and knocked on the door of Boston's one
room apartment; when asked who they were, they replied "the police," and
were admitted to the room, in which they found five Negro men. The police
said they were investigating a burglary. Boston identified himself, and, in reply
to an inquiry by the police, said that he knew no one named Walt. The police
noticed, however, that a man whom they did not then know by name but who
turned out to be Bowler fitted the description of Walt, and had a red jacket. The
police arrested both Boston and Bowler, who without protest allowed
themselves to be driven to the Central Police Station, where they were booked
for "investigation: assault." The time of arrest was given as 12:00 noon.
10
At the police station Bowler gave a statement in question and answer form, the
substance of which was as follows: Bowler, Young and Boston had been
drinking in Boston's apartment on the morning of November 29th. When they
ran out of money, Young said he knew where he could get some. Bowler
assumed that Young was going to borrow from a friend. Between 12:00 noon
and 2:00 p. m. Young took them to an apartment building, which was

unfamiliar to Bowler. After waiting outside the building for five minutes at
Young's request he returned and took them into a second floor apartment where
Bowler observed the prosecutrix asleep on a bed. The statement then reads: "I
grabbed the Hi-Fi and I don't know if Earl (Boston) got anything or not."
Boston and Bowler left the apartment. A few minutes later Young joined them
as they were waiting for a cab, informing them that he had had intercourse with
the prosecutrix. They pawned the hi-fi set for $30.00 in Young's name because
he had a Union identification card, and divided the money. In response to
further questions Bowler said he saw that the woman was white; that she did
not wake up while Young sat on the foot of her bed and told Bowler and
Boston which articles to take and which to leave; and that upon leaving he told
Young "not to bother the lady." In response to specific questions, Bowler
concedes twice that he has not been threatened or promised anything and that
he understood the statement could be used for or against him and that it was a
true and voluntary statement.
11
Counsel for Bowler very ably argues that Bowler's arrest was without probable
cause and therefore illegal; that this circumstance should have been taken into
consideration by the trial court in passing on the question of the admissibility of
his statement, and that Bowler did not waive his constitutional rights by reason
of his counsel's stipulation with respect to the statement's admissibility. But the
difficulty with this argument is that the findings of fact by the district court
support its conclusion that the arrest was lawful. The statements of the
prosecutrix were a reliable source from which the police were justified in
believing that a felony had taken place. The police had probable cause to
suspect Young because his name was connected with the pawned loot. The
police had a continuing duty to run down any leads obtained from Young
whether they believed them or not. The petitioner was in the company of
Boston, who was named by Young. His physical appearance sufficiently fitted
Young's description to enable the police to pick him out of five people in the
room. Whether we would have reached a different result, we think this
sufficient evidence to support the district court's conclusion that the arrest was
legal under Maryland law.
12
The petition alleges incompetence of counsel. When the petitioner was placed
on the stand in the habeas corpus hearing and permitted to make a statement,
his fumbling attempt to justify his charge of the grounds that (1) counsel talked
to him only ten minutes in the jail before the trial, and (2) that most of counsel's
attention was devoted to a co-defendant, did not touch the more cogent reasons
advanced by the pro se petition and supported by its factual allegations or by
the record of the state trial itself.
13
The petition alleges that an illegally obtained statement which was both
inaccurate and coerced was admitted into evidence. The record shows
petitioner's counsel stipulated that it was freely and voluntarily given. Habeas
counsel here suggests that this meant only that no physical force or third degree
methods were used. In the habeas hearing the court permitted the state's counsel
to elicit from the petitioner on cross-examination that he was silent at the trial
and did not protest his counsel's stipulation. The idea that a man with an eighth
grade education could waive his constitutional right by his failure to protest his
own counsel's ignorance or indifference to a defense of psychological force, as
distinguished from physical brutality, is hardly supported by the cases. A
layman may not be so easily denied his constitutional rights. Cf. Fay v. Noia,
372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). We think this aspect needs
to be further explored.
14
Petitioner also alleged that he was jointly tried with Young, who was charged
with a capital offense. At the habeas hearing Bowler testified that Young's
statement incorrectly accused him of assisting in breaking the lock on the
prosecutrix's door, but the prosecutrix testified the door was not locked. Even if
we reject Bowler's statement, though not contradicted in the habeas hearing, the
state court record shows that no motion was made by trial counsel for
severance. The Maryland Court of Appeals strongly implied in Young's appeal
that it would have been error to have denied a motion by his counsel to sever.
Cf. McElroy v. United States, 164 U.S. 76, 17 S.Ct. 31, 41 L.Ed. 355 (1896);
Day v. State, 196 Md. 384, 76 A.2d 729 (1950). It would appear that a serious
question of abuse of discretion would have been raised by a refusal to sever. It
is conceivable that Bowler's counsel had reasons which to him seemed
sufficient for not moving to sever, but no effort was made to explain this
apparent failure of his trial counsel. Whether the State can place the burden of
making out a case on petitioners to this extent in habeas hearings is one
question; in any event in the absence of further inquiry or explanation we think
the record fails to establish the court's conclusion that "none of the petitioner's
constitutional rights were denied him."
15
The issue of incompetence of counsel raised by the petition and supported

either by factual allegations therein or by the record in the trial court is nonfrivolous. If, upon a fair inquiry, the facts alleged by the petitioner are found to
be true and if no satisfactory explanation can be adduced to explain the
apparent errors of trial counsel which are raised by the record, then petitioner is
entitled to be discharged. The case is remanded for further consideration of
these matters.
16
Remanded.
Notes:
1
Not the same counsel as that which represents him in this habeas corpus
proceeding
The petitioner also alleged that state court assigned trial counsel spent only ten
minutes with petitioner in jail before the trial; that during this brief interview
and at the trial, counsel gave most of his attention to a co-defendant, to the
neglect of petitioner's interest. Habeas counsel, however, would not support this
contention and the district court rejected it. We accept the findings of the
district court in this respect

James Bowler v. Warden, Maryland Penitentiary, 334 F.2d 202, 4th Cir. (1964)

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James Bowler v. Warden, Maryland Penitentiary, 334 F.2d 202, 4th Cir. (1964)

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334 F.

James BOWLER, Appellant,

United States Court of Appeals Fourth Circuit.

Norwood B. Orrick, Baltimore, Md. (Court-assigned counsel), for

Bowler filed an application under the Maryland Uniform Post Conviction

Warden, 228 Md. 662, 180 A.2d 878 (1962).

and 2:00 p. m. Young took them to an apartment building, which was

The issue of incompetence of counsel raised by the petition and supported

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