Roland Anderson, 115181 v. Warden, Maryland Penitentiary, Roland Anderson, 115181 v. Warden, Maryland Penitentiary
670 F.2d 1339
4th Cir.
1982
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*1 1339 ANDERSON, 115181, Appellee, Roland #

v.

WARDEN, MARYLAND

PENITENTIARY,

Appellant. ANDERSON, 115181,

Roland #

Appellant,

v.

WARDEN, MARYLAND Bereano, Md., Annapolis, Bruce C. for

PENITENTIARY, appellee/cross-appellant. Appellee. McDonald, Gen., E. Atty. Patricia Asst. 81-6626, Nos. 81-6627. Baltimore, Sachs, Atty. (Stephen Md. H. Appeals,

United Court of States Md., Baltimore, Md., brief), of Gen. Fourth Circuit. appellant/cross-appellee. 5, Argued Nov. FIELD, Judge, Before Senior Circuit 9, Decided Feb. SPROUSE, Judges. HALL and Circuit HALL,

K. Judge: K. Circuit appeals The State from grant of a writ of habeas issued setting the district court aside the state court conviction of Roland Anderson be- part cause of misconduct on the of the trial judge. We find that com- mitted error and we do not condone what overwhelming he did. evi- conviction, supports dence and therefore we find the error harmless a reason- California, able Chapman doubt. U.S. 17 L.Ed.2d 705 Accordingly, we reverse. sixty-two year

Eleanor Davis was a old widow, Maryland. living Annapolis, alone in 26, 1970, night April On the sometime between the hours 10:00 m. and 2:00 a. m., raped she was and murdered in her bed. bloody body Her and battered was found morning by the next her adult son. murder, day police after brought question- Roland Anderson in for then, ing. They did not arrest him agreed fingerprinted and he gave police samples. hair and saliva He and his parents police also consented to allow the During search their home. search bedroom, the defendant’s the officers found *2 item, the evidence corroborated Item stains and trousers blood pair as follows: questioned, the confession them. When stains on seminal having worn those admitted Anderson apart- entered the : He 1. Confession Also, murder. night of the pants on the through the bathroom window. ment palmprints and fingerprints were there palm- and fingerprints : His Evidence window Mrs. Davis’ bathroom found inside were found inside the bathroom prints bathtub, which turned out ledge her and on the bathtub.4 ledge window and on By May police to be the defendant’s. through searched : He 2. Confession enough evidence to consider had amassed money. for apartment they placed prime suspect, Anderson impecca- Davis was an : Mrs. Evidence him under arrest. drawers housekeeper, yet her bureau ble af- signed a written confession Anderson partially open, as someone were found account of giving ter a detailed oral through them. rummaging been following sequence He related the crime.1 up woke Mrs. Davis 3. Confession: Davis’ Having entered Mrs. of events: recognized him. window,2 through the bathroom apartment in the same They lived Evidence: apartment way through the he worked his neighborhood. up woke looking money. for Mrs. Davis her un- He knocked 4. Confession: recognized while he was in her bedroom conscious. with his him. He her unconscious knocked pathologist : The state’s Evidence feeling” over him “funny fist. Then a came that Mrs. Da- at trial concluded testified raped When he remembered and he her. while she was unconscious. raped vis was him, identify he that she would be able raped Mrs. Davis. : He 5. Confession kill her. He searched around decided to autopsy report noted knife. Evidence : The and found a hammer and a butcher Davis’ va- bedroom, of semen in Mrs. Returning presence he beat her over to the microscopi- hammer, then, were gina. be- Pubic hairs which with the head Davis’ were found on cally her similar to Mrs. moaning, cause was still he slashed she having left, admitted taking Anderson with the knife. He trousers left wrist the crime. Seminal hammer, put night he the knife and the which worn and on on the bedsheets and stuffed into the secretions found paper bag into a brown prés- clothing evidenced garbage can behind his house.3 many of his enme even if he could not read 1. was fifteen old at the time of Anderson years written down. words once questioning him, the crime. Before a police rights read him his Miranda and ex- officer gone into Mrs. that he had 2. Anderson said them to him in the of his plained through win- the bathroom Davis’ apartment During the the officer parents. explanation, get her about three months earlier to help dow another officer asked stopped frequently He her inside. keys in when she locked being them if understood what was said. him time Mrs. Davis had told said that at Once the defendant had been advised of fully forgetful her was so about keys that she signed rights, his he and his a waiver of parents window un- had to her bathroom she keep rights form. locked. questioning, After a hours of couple confessed to the crime. The officer then pre- recovered. items were never These a written confession and Anderson pared signed it. disputing Anderson assert- confession, his At tried to the writ- disavow fingerprints Davis’ were in Mrs. ed that his claiming confession, ten that he had through gone in he had bathroom because grade seventh education and could not read into her window to help bathroom argument signing. has no what he was His herself out she had locked when apartment questioning agent about merit. This explanation about three months earlier. in which the defendant had oral statement juror could believe incredible. No patently signed murder. related the details of the fingerprints would re- the defendant’s that statement reduced confession was merely three Mrs. Davis’ bathtub mained writing. Anderson was able to tell about months. night groups.5 ence of both of their blood The Cook’s house on the of the murder. telling point particularly is a because last Ms. Cook and Clinton Roberts both con- type.6 Mrs. Davis had an uncommon blood story. firmed his Roberts testified that he : He hit Mrs. Davis over 6. Confession and Anderson had left for house Cook’s the head with the hammer. 9:30 p.m. Although *3 some time after pathologist Evidence: The arrived, they not know what time had did that the murderer had smashed Mrs. Da- she said she knew Anderson been had at her causing vis’'head with a blunt instrument house until 3:00 or 3:30 a. m. wounds, scalp gaping numerous skull rested, After both sides had the state’s fractures, bruising of the brain. attorney judge thought told the that he the 7. Confession: He her slashed left judge alibi witnesses had lied. The called to kill her. wrist Cook and Roberts into his chambers and Although the pathologist Evidence: consequences the admonished them about injuries testified that the head alone perjury, they whereupon agreed both to fatal, would been have the direct cause of change judge their stories. The then recon- deep Mrs. Davis’ death was a cut vened court and told the that the left wrist. two alibi witnesses had lied in their earlier testi- 8. Confession: He found a hammer knife, mony and a took them with him wanted to revise their state- when he left. ments.7 As the witnesses took the stand again, judge they

Evidence: Mrs. Davis’ son testified the cautioned them that missing that a hammer was from his being given one to last chance tell the belongings. mother’s truth.8 Roberts then admitted that he sum, could have been mistaken about the time he the factual evidence matched the exactly neighborhood confession so as to remove all rea- evening, left Anderson’s possibility sonable of coincidence. it been and conceded that could have as late Cook, turn, as 10:30 or 11:00 m. in Nevertheless, the defendant asserted that acknowledged he was nowhere that she could be near the scene of sure the crime, Phyllis that he had been at Anderson had been at her house for the B; Cook, belonged group presence jury, 5. Mrs. Davis An- 8. To Ms. in the blood of the belongs group According said, derson A. blood expert at adduced evidence of a You have indicated to the Court person’s type body blood can be found in se- portion you previously of the saliva, semen, vaginal cretions as such gave in under oath this case was false. Thus, types fluids. of both in the you opportunity Court now affords an easily explained: secretions se- testimony by telling the" truth factor; type men could A have contributed the purge yourself perjury you and to of the vaginal discharge Mrs. Davis’ could have con- you committed. last will This chance type tributed the B factor. in trial to tell the truth. again, Before took the stand Roberts expert 6. An at trial testified that 10% him, spoke in front population belongs group to blood B. follows: Judge Bowen: At the conclusion of testi- said, 7. The mony you in this case indicated to the Court Foreman, gentlemen Mr. ladies and of the portions testimony you that some jury at the conclusion of this case two of the before this were false. You asked witnesses who testified have indicated to the opportunity purge your- Court an Court that told an untruth in their testi- by being oppor- self of this an crime afforded mony and desire an to correct tunity to tell the truth This is you gentlemen that before ladies and before your opportunity to tell the truth. It is the law, this case concludes. As a matter of going last one are in trial. Court must afford a witness A. Yes sir. perjury. himself herself of or For Judge good You Bowen: better make use of purpose recalling we are these two wit- it. give opportu- nesses to the stand to them an nity to revise their stories to what saying now is the correct task, however, weigh entire a. m. is not to time between 1:00 and 3:00 a. but to

m. determine if the trial court’s error was of magnitude. constitutional The trial found We respect court’s actions with to the alibi tes- question validity find no reason to timony were reconstructed witnesses that verdict. during Anderson’s habeas post- Anderson tried to establish an alibi with proceedings; conviction nothing there is two witnesses who from the start were not the record to indicate exactly what tran- positive about the exact amount of time spired in the trial chambers since no spent with him. All the later transcript of those pre- conversations was emphasize vague did was to how pared. The error following occurred in the their memories actually were.9 Further- manner: *4 more, even if Cook and Roberts had never Immediately following the of changed stories, their Anderson’s alibi de- alibi witnesses appears Cook and Roberts it fense unavailing. would have been As we that attorney approached the state’s the above, outlined the evidence corroborated bench and the judge inquired trial as to his in every Only confession detail. the held; whether he wanted the two witnesses murderer could have as exact an attorney the state’s replied in the affirma- account of the crime as Anderson did. tive sheriff was directed to take

In past, gone them custody. jury courts have to extraor- into Whether the was clear; dinary present during lengths exchange in the liberty name of transcript the trial guilty free does not indicate that it people on technicalities. Under was excused. case, the facts of adopt we refuse to practice. Roland Anderson was found Cook and Roberts later testified that fol- guilty by jury peers. a of his That convic- lowing Roberts’ cross-examination tion supported by large body a of evi- were taken from the courtroom and de- dence and cannot be impugned by the trial tained elsewhere in the courthouse. Cook judge’s error. person her, testified that the detaining who bailiff, she believed to be a accused of We have considered the other issues An- lying jail and threatened her with a sen- derson has raised and we find them to be tence. It is uncertain whether the witness- without merit.10 Accordingly, we reverse es then asked to brought be before the trial the decision of the district court and hold judge in chambers or whether he ordered petition a writ of habeas appear event, them to any there. In is denied. two witnesses next were taken into the REVERSED. judge’s “given quite chambers and a lec- ture” judge returning the trial before SPROUSE, Judge, dissenting: Circuit judge the courtroom. The trial later stated I dissent. It is true strong circum- at original- the time Cook and Roberts probative stantial evidence of Anderson’s ly testified it was “obvious” to him that guilt presented was to the It is like- lying. nothing There is either in wise true that the alibi evidence offered original transcript trial nor in the rec- initially during post-conviction corpus proceeding ord of the habeas indicat- believed, habeas corpus proceedings, if ing response of these witnesses to the probative of Anderson’s innocence. Our “lecture”. Compare Bates, e.g., United 10. Anderson States v. 468 claims ineffective assistance (5th Bates, 1972). key F.2d arguable 1252 Cir. a counsel. The instance of ineffec- prosecution completely changed object witness for the tive assistance is counsel’s failure to his jury after he had been accused of when the commented about perjury. case, However, Unlike that the altered testimo- the alibi witnesses’ since ny error, here could better be characterized as a clari- we hold those acts to have been harmless object fication. counsel’s failure to can not be faulted.

1343 reconvened, when the Court should endeavor to an maintain im- attitude, partial addressed the follows: refrain from unnecessary comment singling and avoid out the testi- Foreman, Mr. gentlemen ladies and mony any particular witness for com- at case the conclusionof this two Brown, Dairy ment. Corp. v. 169 of the witnesses who indi- 257, (1935). Md. 181 A. 468 Even federal cated to the Court that told an un- judge, trial clearly is empowered to truth in their desire an special comment take must to correct that before appearance impar- care maintain ladies gentlemen this case before States, tiality. Quercia v. United 289 U.S. law, concludes. As matter of the Court L.Ed. 1321 must afford a witness an opportunity judicial purpose of comment is to assist the or perjury. himself herself of For conclusion; just arriving at there- purpose we recalling these two fore, the judge’s comments must neutral witnesses to give the stand to them an and not be so as to intimidate the revise their stories what witnesses or otherwise interfere they are saying how is the testi- ascertainment of truth. mony. When a trial comments are as testify, As Ms. prepared *5 emphatic, trial, and as one-sided as in this her, told jury: in only not a strong possibility there that You indicated have to the Court that a intimidated, the witnesses might be but also portion testimony you previ- of the that might that defense counsel be stifled and ously gave under oath in case the efforts of the defendant his own in you false. The Court now affords repressed. behalf be The trial court here opportunity testimony by that blatantly interfered with Anderson’s sixth telling yourself the truth and to right freely present amendment the tes- the perjury you have committed. This is timony openly of two alibi witnesses and you last chance will be in this pressed change them to their trial to tell the truth. Additionally, Anderson had a fourteenth Roberts, To as commenced his testimo- right amendment to a fair which mini- ny, said: mally impartial judge means a fair and jury. clearly The trial in- At remarks the conclusion testimony of the dicated his of the disbelief witnesses’ first you this case indicated to the Court that testimony unquestionably influenced portions some testimony you of the had jury’s appraisal credibility. of their before this were false. You jury, directly having been advised asked the Court for an having Roberts had lied and purge yourself of by being this crime the judge’s strong language heard ad- afforded an opportunity to tell the truth witnesses, only dressed to the could your This come one conclusion—that the tell the It is truth. the last one witnesses was false and contrived to going in this trial. save Anderson. The majority, although expressly disap- majority opinion concludes these proving judge’s conduct, the trial character- actions and effects er- their were harmless ized it involving technicality mere ror. amounting only I harmless error. disa- gree. there Although is no statu- involving An error denial of federal tory provision regarding the freedom of a right in a state constitutional criminal case state trial to comment on the evi- only reviewing be held harmless if the can dence, it is well established trial is satisfied reasonable doubt court perpetrator crime, out as the the error did not contribute to the California, Chapman they

conviction. 386 neither did establish him as such. 17 L.Ed.2d 705 U.S. The alibi from two witnesses conclusion, necessary To reach that it is not probative was the evidence of innocence. only to review the evidence which came initially The witness Cook testified that An- before the but also to evaluate the early derson arrived at her home pro- improper effect which the evidence or evening played of the murder and cards ceedings upon jury’s deliberations. night. all there probative guilt The evidence included The initial of alibi witness Rob- Anderson’s fingerprints palmprints day erts was that on the of the murder he which were found inside the victim’s bath- played baseball and wrestled with Anderson ledge room window and on the bathtub neighborhood boys. and some other He window, but, majority beneath the as the dinner; up then went home to clean and eat pointed out, previously Anderson claimed he later, group, including he met the Ander- through entered the house the same son, on a corner near his home.. Roberts legitimate purpose. window for a all stood around on Then, p. corner until 9:00 or 9:30 m. he and It also is true that Anderson confessed. Anderson hitchhiked out to Ms. Cook’s years he was fifteen old and had house, joined game where a card which grade a seventh education at the time lasted until about a. m. 3:30 interroga- crime was committed. The began tion at about 11 m. and was by the impermis- Unfettered trial court’s completed nearly Although until 2 a. m. sible comment could have con- parents accompanied him to the collage sidered this of circumstantial and police station when he was arrested and, disbelieving alibi evidence the alibi evi- left, soon and it departure was after their dence, could have found Anderson *6 that Anderson abandoned strong his earlier An grounded attack on such a verdict Also, denials. repudiated the confession insufficiency evidence would have prior to maintaining that he did not very large process, failed. The clink in the signing remember it and that he had been however, is that the did a not have fair under the drugs influence of at the time of opportunity testimony; to evaluate the alibi his arrest interrogation. The officer in light of the conduct and comments of the conducting interrogation admitted that presiding judge they only could have disbe- the confession essentially was in his own lieved the evidence which was favorable to words, Anderson’s, Additionally, Anderson. were left had merely agreed with the statements con- with impression the unmistakable tained therein. believed alibi con- This, trived for the benefit of Anderson. by As majority opinion, detailed fo- course, inescapably greater weight added experts rensic negroid testified that head existing proba- circumstantial evidence hairs were nightgown found on the victim’s guilt. tive of and blanket fragment and that a of Cauca- sian pubic hair was found on trousers taken A reviewing determining court harmless from Anderson’s home. On cross-examina- merely error vel non does not determine if tion, however, expert that the admitted there was sufficient evidence to convince a negroid head specifically hairs were not guilt beyond a doubt. reasonable Anderson’s; identifiable as similarly, The constitutional error is harmless pubic hair could not be identified as the even in the would have convicted grouping victim’s. Blood tests on blood and reviewing absence error seminal clothing fluid found on Anderson’s beyond this court is able determine and the victim’s bed covers did not rule him reasonable doubt. reviewing

doI not believe that a court in correctly case can conclude

reasonable doubt the denial to Ander- of an impartial judge

son

impermissible judicial tainting of the de- alibi effect

fense had no agree majority

verdict. I with the

“guilty” people should not be freed on tech-

nicalities. It is the tradition of our criminal

jurisprudence practice, and constitutional

however, go extraordinary that courts “to

lengths liberty in the name of to free” the correctly,

innocent or more to free those constitutionally not been found The trial conduct

case, far representing from mere techni- error, vividly

cal demonstrates the reason against

for our constitutional shields judicial

abuse of conduct. GALLAHAN, Appellee,

Michael G.

Cpl. HOLLYFIELD; B. B. Officer J. W. Townley, Gathright, and John S. Ward- en, Center; Staunton Correctional Vir-

ginia Department Corrections, Appel-

lants. Indians,

Eastern Band Cherokee

Amicus Curiae.

No. 81-6658. Appeals,

United States Court of

Fourth Circuit.

Argued Jan.

Decided Feb. 18, 1982. June

Rehearing Denied