ELDRIDGE, J., delivered the opinion of the Court.
This case concerns the interpretation of a provision of the Maryland Post Conviction Procedure Act, Maryland Code (1957, 1976 Repl. Vol.), Art. 27, § 645A (c), relating to those circumstances under which one is deemed to have "waived" an issue.
The petitioner, Ottway Leon Curtis, Sr., was convicted of first degree murder on September 14, 1967, in the Circuit Court for Prince George's County. Represented by his appointed trial counsel, Curtis took an appeal to the Court of Special Appeals. The only issue raised on that appeal was whether Curtis was "denied due process and equal protection of the laws by the court's inquiry into the prospective jurors' beliefs regarding capital punishment." Answering this question in the negative, the Court of Special Appeals affirmed the conviction, Curtis v. State, 4 Md.App. 499, 243 A.2d 656 (1968). We subsequently denied a petition for a writ of certiorari, Curtis v. State, 252 Md. 730 (1969).
Thereafter, Curtis, represented by different counsel, filed his first petition for relief under the Post Conviction Procedure Act. This petition alleged that: (1) Curtis was denied due process and equal protection because of the admission at his trial of hearsay testimony by the State's witnesses; (2) Curtis's right to a jury trial was denied because a juror was inattentive; (3) his constitutional rights were violated by "the trial court's failure to allow and/or call three or more doctors to testify" as to his sanity; and (4) the trial court erred by disregarding testimony indicating that Curtis was intoxicated at the time of arrest. After a hearing on the merits, the circuit court denied relief on May 28, 1970. An application for leave to appeal was then denied by the Court of Special Appeals.
On March 29, 1976, Curtis instituted the present case by filing his second petition under the Post Conviction Procedure Act. This time Curtis was represented by a third attorney. In this petition he alleged for the first time that he had been deprived of his Sixth Amendment right to "the genuine and effective representation of counsel" at the trial, on direct appeal, and at the first post conviction proceeding. With respect to the trial, the allegation was based on the trial attorney's failure to request a jury instruction on alibi, failure to request an instruction that voluntary intoxication could reduce first degree murder to second degree murder, failure
The State moved to dismiss this second post conviction petition, maintaining that Curtis had waived these allegations for purposes of review under the Post Conviction Procedure Act, Art. 27, § 645A (c), by failing to raise the issues previously. For purposes of ruling on the motion to dismiss, the circuit court accepted as true the following proffered facts:
The circuit court granted the State's motion to dismiss the petition. The court held that the matter of inadequacy of counsel had been waived because of Curtis's failure to raise it at the first post conviction proceeding. Relief was also denied with regard to the matter of the homicide instructions in light of Mullaney v. Wilbur, supra, the court holding that the error in the jury instruction was cured by the return of a first degree murder verdict.
Curtis then filed an application for leave to appeal to the Court of Special Appeals, raising as the only matter the circuit court's holding that he had waived the inadequacy of counsel allegations. He argued that mere failure to raise the inadequacy of counsel allegations before did not constitute a waiver; instead, he insisted that these allegations could only be deemed to be waived if he himself "could have made, but intelligently and knowingly failed to make, such allegation[s]"
The Court of Special Appeals granted the application for leave to appeal and affirmed, Curtis v. State, 37 Md.App. 459, 381 A.2d 1166 (1977). The Court of Special Appeals held that the failure of the petitioner's attorney at the first post conviction proceeding to raise the matter of trial counsel's inadequacy resulted in a waiver.
Curtis then filed in this Court a petition for a writ of certiorari, arguing that the Court of Special Appeals had erroneously interpreted the post conviction procedure statute. Due to the importance of the question presented, we granted certiorari.
The Maryland Post Conviction Procedure Act, Art. 27, § 645A, provides for and regulates the post conviction proceedings by certain persons who have been convicted of crimes. Subsection (c) of § 645A deals with "waiver" as follows:
The State maintains, as the Court of Special Appeals held, that under the above language, the mere failure to raise an issue results in a presumption of waiver, and only a finding of "special circumstances" will rebut the presumption or alleviate the effect of the waiver. Moreover, the State argues that facts such as those proffered and accepted in this case, showing that petitioner did not "intelligently and knowingly"
This interpretation of § 645A(c) by the State and the Court of Special Appeals is manifestly erroneous. The first paragraph of subsection (c) declares that, for purposes of the Post Conviction Procedure Act, "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" in a prior proceeding. The test for "waiver" which the Legislature contemplated was clearly the "intelligent and knowing" failure to raise, not the failure of counsel or an unknowing petitioner to raise an issue. The first paragraph of subsection (c) goes on to provide that where there is a knowing and intelligent failure to raise an issue previously, the failure "shall be excused because of special circumstances," with the burden being upon petitioner to prove the existence of special circumstances. Thus, the matter of "special circumstances" only becomes pertinent where there is an intelligent and knowing failure of the petitioner to previously raise an issue. Where the record affirmatively shows that there was not an intelligent and knowing failure to raise, there is nothing to "excuse," and the presence or absence of "special circumstances" has no relevance.
The second paragraph of subsection (c) provides that where an allegation of error could have been made by a petitioner previously, "but was not in fact so made, there shall be a rebuttable presumption that said petitioner intelligently and knowingly failed to make such allegation." (Emphasis supplied.) The statute does not speak in terms of a conclusive presumption of waiver, absent special circumstances, as viewed by the State and the Court of Special Appeals. Rather, it is a presumption of an intelligent and knowing failure to have raised an issue, which failure can be rebutted by evidence or stipulated facts showing that petitioner did not "intelligently and knowingly" fail to raise the issue previously.
The interpretation adopted by the State and the Court of
In sum, with respect to those situations governed by the "waiver" standards of subsection (c), where the petitioner establishes that he did not in fact intelligently and knowingly fail to raise an issue previously, such issue cannot be deemed to have been waived. He need not, in addition, establish "special circumstances." It is only where the petitioner in fact intelligently and knowingly failed to raise an issue, or where he is unable to rebut the presumption of an intelligent and knowing failure, that he must show "special circumstances" in order to excuse his failure.
On the other hand, the above holding is not necessarily dispositive of cases like the present one. The foregoing principles may not govern every situation where there has been a failure to raise a matter previously. The pertinent question concerns the very scope or applicability of § 645A (c) itself. In other words, did the General Assembly, by use of the term "waiver" in the Post Conviction Procedure Act, intend that the definition of "waiver" set forth in subsection (c) determine in all cases the right to raise for the first time any issue in a post conviction action, regardless of the nature of prior procedural defaults, tactical decisions of counsel, or omissions of counsel?
It has repeatedly been recognized that the word "waiver" itself is ambiguous, susceptible to numerous meanings depending upon the particular context in which it is used. Speaking for the Supreme Court in Green v. United States, 355 U.S. 184, 191, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), Mr. Justice Black stated: "`Waiver' is a vague term used for a great variety of purposes, good and bad, in the law." The inherently ambiguous nature of the word "waiver" was again recognized by the Supreme Court in Schneckloth v. Bustamonte, 412 U.S. 218, 245, 235, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973): "[T]here is no universal standard that must be applied in every situation where a person foregoes a constitutional right." Commentators have also discussed the variable nature of the term. See Ralph S. Spritzer, Criminal Waiver, Procedural Default and the Burger Court, 126 Pa. L. Rev. 473, 475 (1978); George E. Dix, Waiver in Criminal Procedure: A Brief for More Careful Analysis, 55 Tex. L. Rev. 193, 194 (1977). In United States v. Chichester, 312 F.2d 275, 281 (9th Cir.1963), the United States Court of Appeals for the Ninth Circuit declared:
In view of the ambiguity associated with the term "waiver," we do not feel compelled by the language of § 645A to apply the "intelligent and knowing" standard to all allegations made in post conviction actions. Any time a matter falls within the scope of § 645A(c), there is no doubt that the explicitly stated standard, "intelligent and knowing," is applicable. However, it must be determined what type of situations the Legislature intended to be encompassed by subsection (c).
In construing a statute, a court must consider the meaning and effect of statutory language in light of the objectives and purposes of the enactment. State v. Fabritz, 276 Md. 416, 422, 348 A.2d 275 (1975), cert. denied, 425 U.S. 942, 96 S.Ct. 1680, 48 L.Ed.2d 185 (1976); Height v. State, 225 Md. 251, 257, 170 A.2d 212 (1961); Barnes v. State, 186 Md. 287, 291, 47 A.2d 50, cert. denied, 329 U.S. 754, 67 S.Ct. 95, 91 L.Ed. 650 (1946). We have previously observed in Jourdan v. State, supra, and Bristow v. State, supra, that the legislative purpose of the Post Conviction Procedure Act, as amended by Ch. 442 of the Acts of 1965, was to adopt the concept of "waiver" set forth by the Supreme Court in cases like Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 146 A.L.R. 357 (1938), and Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). Consequently, a review of the Supreme Court's decisions in this regard would be instructive in ascertaining the legislative intent.
Johnson v. Zerbst, supra, is generally regarded as the cornerstone regarding waiver of certain basic constitutional
The strictness of the Johnson v. Zerbst standard was underscored by the Court in Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962), where it was declared: "Presuming waiver [of the right to counsel] from a silent record is impermissible."
This high standard has been applied regarding the waiver of the right to trial by jury. In Adams v. United States, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942), the Supreme Court stated (317 U.S. at 275):
Due to the conclusive nature of a guilty plea, the Court in Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473 (1962), said:
Fay v. Noia, supra, is, of course, a leading case setting forth the most restrictive concept of waiver. There, the defendant failed to appeal a murder conviction even though it was undisputed that a coerced confession was used against him at trial. Disagreeing with the trial court's finding of waiver, the Supreme Court said (372 U.S. at 439):
In Schneckloth v. Bustamonte, supra, it was held that where a defendant voluntarily consents to a search, he thereby foregoes any Fourth Amendment rights despite the absence of a Johnson v. Zerbst type of waiver. Although knowledge of the right to refuse consent was said to be a factor in determining whether the defendant's rights were violated, it was deemed not to be dispositive (412 U.S. at 241):
Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), considered the right of a criminal defendant not to be tried in jail clothes. The Court found that although a defendant has a constitutional right not to be tried in such attire, only by affirmatively asserting this right will it be given effect. Finding that the question was essentially in the nature of trial tactics, and did not involve the test of waiver under Johnson v. Zerbst, the Court commented (425 U.S. at 512):
The principle that a defendant is often bound by certain tactical decisions of his lawyer was also relied upon by the Court in United States v. Nobles, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975). The Court there held that the defendant, after his attorney had chosen to call his own investigator as a witness, was not entitled to the protections of the work product doctrine with respect to matters covered by the investigator's testimony.
The principle that a criminal defendant may be precluded from raising an issue despite the absence of a "waiver" in the Johnson v. Zerbst sense, extends beyond the area of attorney's trial tactics. Thus, in Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973), a federal prisoner sought post conviction relief under 28 U.S.C. § 2255, asserting that the racial composition of the grand jury which indicted him was unconstitutionally discriminatory. The trial court found that under Rule 12(b)(2) of the Federal Rules of Criminal Procedure the defendant had waived the issue since he did not raise it before trial. Under the rule, the defendant's failure to timely raise the issue could be excused only if he showed "cause." In the Supreme Court the defendant argued that the "knowing and intelligent" standard of Fay v. Noia and Johnson v. Zerbst was controlling. The Supreme Court unequivocally rejected this position, agreeing with the trial court that the defendant was bound by the procedural requirements of the rule.
The Court in Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976), was faced with a similar attack on the grand jury's racial composition in the context of a state proceeding. The issue before the Court was whether the failure of a state prisoner to note a timely objection to the composition of the grand jury which indicted him would bar him from federal habeas corpus relief. The Court noted that "`[t]here is no reason to ... give greater preclusive effect to procedural defaults by federal defendants than to similar
In many other circumstances it has been held that a criminal defendant may have been precluded from asserting a constitutional right because of prior action or inaction, despite the absence of a "waiver" within the meaning of Johnson v. Zerbst and Fay v. Noia. See, e.g., Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); United States v. Washington, 431 U.S. 181, 97 S.Ct. 1814, 52 L.Ed.2d 238 (1977); Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977); Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976); Garner v. United States, 424 U.S. 648, 96 S.Ct. 1178, 47 L.Ed.2d 370 (1976). See also Covington v. State, 282 Md. 540, 553, 386 A.2d 336 (1978) (dissenting opinion).
It is clear from the above discussed cases that whether one is precluded from asserting a constitutional right because of what may have occurred previously, even though the failure was not "intelligent and knowing," depends upon the nature of the right and the surrounding circumstances. A defendant may forego a broad spectrum of rights which are deemed to fall within the category of tactical decisions by counsel or involve procedural defaults.
In the broadest sense of the word, any tactical decision by counsel, inaction by counsel, or procedural default, could be described as a "waiver." For example, an attorney must make numerous decisions in the course of a trial. Whenever he makes one, choosing to take or forego a particular action, the
The Legislature adopted the waiver provision of the Post Conviction Procedure Act, subsection (c), in 1965 as an amendment to the original post conviction statute, Ch. 442 of the Acts of 1965.
In Bristow v. State, supra, 242 Md. at 289-290, decided shortly after the Post Conviction Procedure Act was
If, in defining "waiver" for purposes of the Post Conviction Procedure Act, the General Assembly intended to make subsection (c), with its "intelligent and knowing" definition, applicable every time counsel made a tactical decision or a procedural default occurred, the result could be chaotic. For example, under such an interpretation of the statute, for a criminal defendant to be bound by his lawyer's actions, the lawyer would have to interrupt a trial repeatedly and go through countless litanies with his client. One of the basic principles of statutory construction is that a statute should not be construed to lead to an unreasonable or illogical result. Grosvenor v. Supervisor of Assess., 271 Md. 232, 242, 315 A.2d 758 (1974); Coerper v. Comptroller, 265 Md. 3, 6, 288 A.2d 187 (1972); Pan Am. Sulphur Co. v. State Dep't of Assessments and Taxation, 251 Md. 620, 627, 248 A.2d 354 (1968); Sanza v. Maryland Board of Censors, 245 Md. 319, 340, 226 A.2d 317 (1967). It is hardly conceivable that the Legislature, in adopting § 645A (c), could have intended to use the word "waiver" in its broadest sense, thereby requiring that the "intelligent and knowing" standard apply every time an issue was not raised before.
Consequently, we believe that the Legislature, when it spoke of "waiver" in subsection (c) of Art. 27, § 645A, was using the term in a narrow sense. It intended that subsection (c), with its "intelligent and knowing" standard, be applicable only in those circumstances where the waiver concept of Johnson v. Zerbst and Fay v. Noia was applicable. Other situations are beyond the scope of subsection (c), to be
Turning to the instant case, the petitioner Curtis's allegations are that the representation by his trial counsel was so inadequate that he was deprived of his Sixth Amendment right "to have the Assistance of Counsel for his defense." It is settled that a criminal defendant cannot be precluded from having this issue considered because of his mere failure to raise the issue previously. The question of the constitutional adequacy of trial counsel's representation is governed by the Johnson v. Zerbst standard of an "intelligent and knowing" waiver. Hawk v. Olson, 326 U.S. 271, 274, 279, 66 S.Ct. 116, 90 L.Ed. 61 (1945); Glasser v. United States, 315 U.S. 60, 70-72, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Garcia, 517 F.2d 272 (5th Cir.1975); Kelly v. Peyton, 420 F.2d 912, 914 (4th Cir.1969); Sawyer v. Brough, 358 F.2d 70, 73-74 (4th Cir.1966). Consequently, subsection (c) of the Post Conviction Procedure Act is applicable to Curtis's contention, and it can only be deemed "waived" for purposes
The Court of Special Appeals did not reach the issue of the inadequacy of representation by Curtis's trial counsel because of its holding that the question had been waived. We shall therefore remand this case so that the Court of Special Appeals can consider whether the petitioner's allegations, coupled with the record of trial, made out a sufficient case of inadequacy of trial counsel so as to entitle him to a hearing on the present post conviction petition.
Judgment of the Court of Special Appeals reversed and case remanded to the Court of Special Appeals for proceedings not inconsistent with this opinion.
Costs to be paid by Prince George's County.