New trial is denied in 1981 murder Court of Appeals rebuffs man serving life sentence

April 09, 1997|By Dennis O'Brien | Dennis O'Brien,SUN STAFF

A 40-year-old Glen Burnie man who claimed he was unfairly convicted of a 1981 murder is not entitled to another day in court, the state's highest court ruled yesterday .

David E. Rose, convicted in 1982 by an Anne Arundel Circuit Court jury of murdering Virginia R. Pollard, won a chance to argue for a new trial last year after the Court of Special Appeals agreed that his jury had received improper instructions.

But the Court of Appeals said Rose had waited too long to raise the issue of jury instructions.

Rose, formerly of the 500 block of Delaware Ave., was convicted of strangling the 19-year-old Baltimore woman and leaving her body along a road in Severn March 29, 1981. Judge Raymond G. Thieme Jr. sentenced him to life in prison.

Rose's original appeals were rejected, and he sought a new trial under a procedure known as post-conviction appeals.

Mary Ann Berlin, Rose's lawyer, argued in 1994 that Thieme erred when he told jurors the state had to prove its case "to the exclusion of a reasonable doubt," according to court files.

The Court of Appeals said yesterday that jury instructions are not among the grounds for post-conviction appeals under Maryland law.

Rose should have raised that argument in the appeal filed shortly after his 1982 conviction, the court said. By not raising the argument in his first appeal, Rose waived his right to use it in a post-conviction hearing, the court said.

"Most rights, whether constitutional, statutory or common-law, may be waived by inaction or failure to adhere to legitimate procedural requirements," Judge John S. Eldridge wrote in an 11-page ruling.

Assistant State's Attorney Thomas Pryal said he was relieved by the decision.

If Rose had succeeded, it would have meant retrying a case with evidence that is 15 years old and witnesses who are 15 years older, he said.

"It means we don't have to deal with the time, the expense and the hassle involved in going through a new trial," Pryal said.

Pub Date: 4/09/97

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