United States District Court, D. Maryland
WAYMAN N. WITCHER, #352-048 Petitioner,
WILLIAM D. QUARLES, Jr., District Judge.
Pending is Wayman N. Witcher's ("Witcher") Petition for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. (ECF 1, 3). Respondent John S. Wolfe, former Warden of the Jessup Correctional Institution, by his counsel, has filed a response, (ECF 8), to which Witcher has replied. (ECF 12). After considering the pleadings, exhibits, and applicable law, the Court determines that a hearing is unnecessary. See Local Rule 105.6 (D. Md. 2011); Rule 8, "Rules Governing Section 2254 Proceedings in the United States District Courts."
Witcher, pro se, is challenging his 2008 judgment of conviction after he was found guilty by a jury sitting in the Circuit Court for Wicomico County, Maryland, of child abuse and related offenses. The facts adduced at trial were set forth by the Court of Special Appeals of Maryland on direct appeal:
Heather Stillwell, Jalen's mother, testified that she left Jalen alone with appellant for the first time on the morning of August 24, 2007, while she ran some errands. On that date Jalen was 19 days old. She returned after a few hours and discovered that the left side of Jalen's head was red and swollen. She took Jalen to be examined by a medical doctor that afternoon. At the doctor's suggestion, she took Jalen to Peninsula Regional Medical Center ("PRMC"). Jalen was admitted to PRMC on August 24th and discharged two days later.
Because she had returned to her job as a waitress, Ms. Stillwell left Jalen with appellant for a second time on August 29, 2007. When she returned home on that date, she discovered Jalen had redness, bruising, and swelling of his head near his left ear, in the approximate location of his previous injury. Ms. Stillwell decided to take Jalen to the hospital again on August 29, 2007. Later that night, hospital personnel told Ms. Stillwell that Jalen had a skull fracture. The next morning, Jalen was flown to Johns Hopkins Hospital in Baltimore for further treatment.
Dr. Michell Goldstein, an attending physician in the Pediatric Emergency Department at Johns Hopkins Hospital, testified as an expert in pediatrics. He assessed Jalen's injuries on August 31, 2007, after reviewing Jalen's medical records from Johns Hopkins Hospital and PRMC. He also reviewed an x-ray and CAT scan performed at PRMC on August 29th; two CAT scans performed at Johns Hopkins Hospital on August 29th; and a CAT scan performed at Johns Hopkins Hospital on August 31st. Later he reviewed a CAT scan performed at PRMC on August 24th. He opined that Jalen's skull fracture was caused by blunt force trauma to the skull.
Ms. Stillwell was interviewed by Detective John Seichepine on August 29, 2007, at the Child Advocacy Center. At Detective Seichepine's request, Ms. Stillwell made two telephone calls to Mr. Witcher. Both calls were recorded. A compact disc ("CD") and a transcript of the conversations were subsequently prepared by Detective Seichepine. The CD was admitted into evidence as State's Exhibit 2A. The transcripts were marked for identification as State's Exhibits 2B and 2C and were distributed to the jurors so that they could follow along as they listened to the recording. Although the transcripts were not themselves admitted into evidence, they were made a part of the record sent to this Court.
There were several references in those telephone conversations by Mr. Witcher to his prior criminal record. These include the following statements by appellant:
"But why would you jeopardize me though? Knowing the situation that I've already been in trouble and shit."
"I'm the one with the record. You know what I mean? So who else they gonna pin it on, try and keep me as far out of it as possible."
"Yea, but you gotta figure me, you looking at my record."
"My mother fucking record and shit, they gotta pinpoint the shit on somebody you, that's what I'm trying to explain to you."
During the phone conversations with Ms. Stillwell, Witcher chastised Stillwell for telling police that she had left him alone with the baby. Witcher also encouraged Stillwell to lie to police and say that she tripped over her shoe string and dropped Jalen.
During the State's case, the prosecutor also introduced into evidence, over defense counsel's objection, a recording of a telephone conversation between Mr. Witcher and his wife, Michelle Basham. The call was made by Mr. Witcher from a pay phone in the Wicomico County Detention Center. Before the call was connected, a pre-recorded message advised both the caller and the recipient of the call that "this call is from a correctional institution and is subject to monitoring and recording." In the phone conversation, appellant asked his wife to listen to his story and "catch any inconsistencies." Witcher then relayed to her the story about Ms. Stillwell tripping and dropping the baby.
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The appellant called only one witness at trial, Dr. David Yousem, the Director of Neuro-Radiology at Johns Hopkins Hospital. Dr. Yousem was accepted as an expert in radiology. He testified that he reviewed Jalen's August 24th and August 29th CAT scans taken at PRMC. Dr. Yousem testified that, to a reasonable degree of medical certainty, both CAT scans indicated the presence of a skull fracture.
The jury found appellant guilty of first-degree child abuse, second-degree child abuse, first-degree assault, second-degree assault, and reckless endangerment arising from the events of August 24, 2007, but acquitted him of all counts charging him with the same offenses that were alleged to have occurred on August 29, 2007.
(ECF 8, Ex. 7, pp. 1-4).
On July 22, 2008, the court sentenced Witcher to serve 25 years in prison for first-degree child abuse and merged the remaining offenses. See Ex 3, pp. 117-18.
Witcher appealed his conviction to the Court of Special Appeals, raising three questions: 1) whether the trial court erred in admitting evidence of Witcher's telephone call to his wife from the detention center; 2) whether the trial court erred in admitting evidence of Witcher's prior record; and 3) whether the trial court erred in refusing to instruct the jury that the State must prove every element of the crimes charged beyond a reasonable doubt. See Ex. 4-6. In an unreported opinion filed on May 21, 2010, the Court of Special Appeals rejected Witcher's claims and affirmed his convictions. See Ex. 7.
Witcher filed a Petition for Writ of Certiorari in the Court of Appeals of Maryland, seeking review of two issues: 1) whether the trial court erred in refusing to instruct the jury that the State must prove every element of the crimes charged beyond a reasonable doubt; and 2) whether the trial court erred in admitting evidence of Witcher's telephone call to his wife from the detention center. See Ex. 8. On August 23, 2010, the Court of Appeals denied review. See Ex. 9.
On August 25, 2010, Witcher filed a pro se Petition for Post-Conviction Relief in the Circuit Court for Wicomico County, which was later supplemented by counsel. See Ex. 10, 11. The Petition raised claims of ineffective assistance of trial counsel for: 1) failing to object to the prosecutor's improper closing argument; 2) failing to object to telephone testimony by a State's witness; 3) denying Witcher his right to testify; 4) failing to object to the trial court's failure to give a requested jury instruction; 5) failing to request a jury instruction on the intent element of first-degree assault; 6) failing to bring him to bench conferences; 7) failing to object to the use of medical records; 8) failing to object to the use of false testimony; 9) making statements adverse to his case; 10) failing to object to flight and concealment statements made by the prosecutor; and 11) failing to call a material witness. See Ex. 10-13.
Witcher and his trial counsel, James Podlas, Esquire, testified at the post-conviction hearing on December 17, 2010. See Ex. 12. At the close of the hearing, the defense provided closing argument on only two issues: whether trial counsel was ineffective for (1) failing to object to the prosecutor's improper closing argument, and (2) failing to object to telephone testimony by a State's witness. Id. at 40-45. The State countered that Podlas had objected appropriately during the prosecutor's closing argument and that it was not unreasonable to allow a witness to testify by telephone given the circumstances of the case. Id. at 46. By opinion and order filed March 10, 2011, the Circuit Court denied post-conviction relief as to all grounds raised. See Exhibit 13.
Witcher, through counsel, filed an application for leave to appeal the denial of his post-conviction petition, asserting that trial counsel was ineffective for failing to object to, and agreeing to permit, a State's witness to testify via cellular phone. See Ex, 13. On October 3, 2012, Witcher's Application for Leave to Appeal was denied summarily by the Court of Special Appeals. The mandate issued on November 5, 2012. See Ex. 14.
Witcher is raising the following claims in this Petition for federal ...