Appeal from the Circuit Court for Anne Arundel County; Duckett, J.
Brune, C. J., and Henderson, Prescott, Horney and Marbury, JJ. Brune, C. J., delivered the opinion of the Court.
On this appeal from a denial of post conviction relief, the appellant, Brady, contends that he was deprived of a fair trial by reason of the fact that the State did not disclose at or before the trial that it then had in its possession a statement of his accomplice Boblit admitting that he, Boblit, had actually strangled the victim.
Boblit and Brady were each convicted of first degree murder in separate trials. Brady elected a jury trial and was tried first; Boblit elected a court trial. Each appealed from his conviction and the cases were argued together in this Court, and each of the convictions was affirmed on appeal, sub nom. Boblit v. State, 220 Md. 454, 154 A.2d 434. It was conceded that Boblit conspired with Brady to rob the victim, Brooks, but each claimed that the other had actually strangled Brooks and that the killing was separate and distinct from the robbery. We held otherwise, pointing out that the robbery was not complete at the time Brooks was killed, although Boblit contended on appeal that he did not actively assist Brady in strangling the victim. The sole contention raised on behalf of Brady related to the voluntariness of his confession, in which he admitted participation but denied killing Brooks, although, as pointed out in the opinion, he took the stand and admitted virtually everything set forth in his confession. On this appeal, Brady concedes that "[a]t his trial the appellant [Brady] admitted participation in the robbery in the course of which the homicide occurred." As we held on the original appeals of Boblit and Brady, the killing was clearly in perpetration
of the robbery and hence covered by the statute, Code (1957), Art. 27, Sec. 410, which defines such a killing as murder in the first degree.
Brady subsequently filed a motion to set aside the judgment and sentence on the ground that an unsigned statement given to the police by Boblit, of which he claims he had no knowledge until after the affirmance on his appeal, although it was produced at the trial of Boblit, would have corroborated his testimony that Boblit did the actual killing. We dismissed his appeal from the denial of that motion on the ground that his only relief was under the Post Conviction Act, Code (1960 Supp.), Art. 27, Sec. 645A, et seq. Brady v. State, 222 Md. 442, 160 A.2d 912.
Brady then applied for post conviction relief, and his application was denied after a full hearing, his application being on substantially the same grounds. The trial court filed an elaborate opinion holding that there had been no denial of a constitutional right. We granted leave to appeal.
At the trial of Boblit the State offered the unsigned statement of Boblit in which he admitted strangling the victim. The court excluded it because it was unsigned.*fn1 In several prior statements Boblit had stated that Brady did the killing and so testified on the stand. These statements were made available to Brady's counsel before trial, but the one in which Boblit said that he had done the actual killing was not so made available. At the trial of Brady the unsigned statement of Boblit was not produced by the State nor offered in evidence. This trial, as noted, took place before the trial of Boblit. The State knew in advance of Brady's trial that Brady's chief reliance was upon the hope that the jury might find him guilty of first degree murder without capital punishment if it believed his testimony that Boblit did the killing. The importance of this consideration was stressed in the case of Day v. State, 196 Md. 384, 391, 76 A.2d 729. See also United States ex rel. Almeida v. Baldi, 195 F. 2d 815 (3d Cir.), cert. den., 345 U.S. 904; rehearing den., 345 U.S.
946; United States ex rel. Thompson v. Dye, 221 F. 2d 763 (3d. Cir.), cert. den. 350 U.S. 875.
We think that there was a duty on the State to produce the confession of Boblit that he did the actual strangling or at least to inform counsel for the accused of its existence. The suppression or withholding by the State of material evidence exculpatory to an accused is a violation of due process. See People v. Fisher, 192 N. Y. S. 2d 741, 746 (Ct. Gen. Sess. N. Y. Co.); United States ex rel. Almeida v. Baldi, supra; United States ex rel. Thompson v. Dye, supra; Griffin v. United States, 87 U. S. App. D. C. 172, 183 F. 2d 990. For cases involving the related problem of the prosecution's failing to correct testimony known to be untrue, and holding such failure and the use of such testimony to amount to a denial of due process, see Alcorta v. Texas, 355 U.S. 28; Napue v. Illinois, 360 U.S. 264; People v. Savvides, 1 N. Y. 2d 554, 136 N. E. 2d 853 (non-disclosure and failure to correct untrue testimony as denying a fair trial). It is nonetheless a denial of due process if the withholding of material evidence is without guile (Griffin v. United States; People v. Savvides; both just cited) but it seems fair to add, that the appellant here does not contend that failure to produce Boblit's statement in issue was the result of guile.
The State contends that Boblit's confession of the actual strangling would not have been admissible at Brady's trial and hence that its being withheld could not have prejudiced Brady's case. It is true that as a general rule an extrajudicial confession or admission by a third party that he committed the offense for which the defendant is on trial is not admissible. Munshower v. State, 55 Md. 11; Baehr v. State, 136 Md. 128, 110 A. 103; and this has been recognized in Brennan v. State, 151 Md. 265, 134 A. 148, and in Thomas v. State, 186 Md. 446, 47 A.2d 43. This general rule, which is the majority rule in this country as well as the rule in England, has been severely criticized, notably in Mr. Justice Holmes' brief and pointed dissent in ...