George Terry Young v. State of Maryland

RUSSELL, Circuit Judge:

At a trial without a jury, the appellee was convicted of rape and burglary in 1960 before the Criminal Court of Baltimore, Maryland, and received a death sentence for rape and ten years’ imprisonment for burglary. On appeal, his conviction was affirmed. His death sentence, however, was commuted by executive action to confinement for life. He thereafter filed for post-conviction relief in the State Court, and, upon the exhaustion of State remedies without success, he applied to the District Court for habeas relief. The District Court granted such relief and the State appeals. We reverse.

The District Court based its conclusion in favor of habeas relief on the allegedly improper admission in evidence of a trenchcoat, taken after appellee’s arrest from a room in his father’s home where he slept, on which there were spermatozoa stains. It found the search, as a result of which the trenchcoat was secured, violative of the appellee’s Fourth Amendment rights and held that for such reason it was inadmissible. We find it unnecessary to determine the validity of the search, though it may not be inappropriate to add that there appears to be support for a finding of validity. The admission of the trenchcoat was harmless error beyond a reasonable doubt and it was accordingly immaterial whether the trenchcoat had been illegally seized. United States v. Simuel (4th Cir. 1971) 439 F.2d 687, 689; United States ex rel. Di Rienzo v. Yeager (3d Cir. 1971) 443 F.2d 228, 231; Serrano v. Hocker (9th Cir. 1971) 444 F.2d 1093; United States v. Manning (5th Cir. 1971) 440 F.2d 1105, 1111; United States v. Rodriguez (9th Cir. 1971) 438 F.2d 1164, 1167.

The appellee admitted the act of intercourse. He, also, testified that during the act he wore his trenchcoat. If he had denied wearing the trenchcoat during the alleged illegal act, it might be argued that the admission may have involved some prejudice, since it would have indicated haste and would have supported an inference of force. But, as has been observed, he did not deny wearing the trenchcoat. Nor was he prejudiced by the fact that there were spermatozoa stains on the coat. Again, the presence of such spermatozoa stains could only have prejudiced appellee’s case if he had denied the intercourse. But he admitted the act of intercourse. The point in the case was whether the intercourse was by consent or by force.

The appellee testified that he and two companions broke the lock on the apartment of the prosecutrix and thereby gained entrance into her apartment for the purpose of burglarizing it, and that, while they were so engaged, the prosecu-trix, seemingly indifferent to the burglary of her apartment going on before her eyes, besought the favor of the ap-pellee, who, without removing his trench-coat, left the act of burglary to his companions, and indulged her. The prose-cutrix’s testimony, on the contrary, supported the prosecution’s theory of forcible rape. The credibility of the parties and the believability of their conflicting stories were thus the only issues in the cause. The admission of the trenchcoat added nothing to the credibility of the prosecution’s version of the event and similarly created not a tittle of prejudice to the appellee’s claim in defense.

It is suggested that, though no apparent prejudice to the appellee can be immediately conceived in the admission of the trenchcoat, we should assume that, unless it were prejudicial to appellee’s defense, the State would not have offered it in evidence. Under such an argument, the admission of any improper evidence by the State, however, immaterial and harmless it might appear, would be regarded as prejudicial and could never be held to be harmless. The authorities, however, are abundant, wherein the admission of evidence, even though found to be improper, has been declared harmless error under the rule enunciated in Chapman and Harrington.¹ See, for instance, Chambers v. Maroney (1970) 399 U.S. 42, 52, 90 S.Ct. 1975, 26 L.Ed.2d 419, reh. den. 400 U.S. 856, 91 S.Ct. 23, 27 L.Ed.2d 94; United States v. Simuel, supra; United States ex rel. Rosenberg v. Mancusi (2d Cir. 1971) 445 F.2d 613, 619; United States v. Mendoza (9th Cir. 1971) 441 F.2d 1107, 1108; Monteiro v. Picard (1st Cir. 1971) 443 F.2d 311, 313; United States v. Ferrone (3d Cir. 1971) 438 F.2d 381, 386, cert. den. 402 U.S. 1008, 91 S.Ct. 2188, 29 L.Ed.2d 430. Indeed, any other conclusion would make the harmless error rule meaningless.

During argument in this Court, the possibility that the trenchcoat may have been improperly used by the police to induce the appellee’s confession was suggested. Until that time, there had not been even a remote contention either in the State Court or in the District Court that appellee’s confession had been induced by the seizure of the trenchcoat. Not only had no such contention been raised in the State Court (Cf., Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438, decided December 20, 1971) but there is no evidence in the record to support such contention. The appel-lee has never testified he was coerced in giving his confession nor proffered any other evidence of such coercion. This Court, on a record barren of any evidence that the confession was coerced, may not assume its involuntariness. Such a finding would have to be supported by some evidence in the record. If there is any basis in fact for such a claim, the appel-lee must present it initially to the State Court where the facts can be properly ascertained and a record had on which a proper finding of coercion vel non may be made; the issue may not be considered at the appellate stage in this proceeding in the absence of both a presentation of the claim to the State Court and a factual basis in the record for the claim.

The judgment of the District Court is accordingly reversed, with direction to dismiss the petition for a writ of habeas corpus herein.

Reversed.

1 . Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, reh. den. 386 U.S. 987, 87 S.Ct. 1283, 18 L.E'd.2d 241; Harrington v. California (1969) 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284.