State v. Mann

240 Md.App. 592

207 A.3d 653

STATE of Maryland

v.Christopher MANN

No. 80, Sept. Term, 2018

Court of Special Appeals of Maryland.

May 1, 2019

Argued by: Benjamin A. Harris (Brian E. Frosh, Attorney General on the brief) Baltimore, MD, for Appellant.

Argued by: William L. Welch, III Columbia, MD, for Appellee.

Panel: Meredith, Friedman, Beachley, JJ.

Beachley, J.

This case concerns post-conviction proceedings following appellee Christopher Mann's convictions in the Circuit Court for Baltimore City. There, following a five-day jury trial which concluded on August 12, 2004, the jury convicted Mann of felony murder, kidnapping, and conspiracy to commit kidnapping. A panel of this Court affirmed Mann's convictions on direct appeal. Mann v. State , No. 1895, Sept. Term 2004 (filed Jan. 12, 2007). Mann subsequently filed a petition for post-conviction relief. In an order dated February 13, 2018, the post-conviction court granted Mann's motion and ordered a new trial on the basis that Mann's trial counsel rendered ineffective assistance by failing to request an alibi jury instruction. The State successfully applied for leave to appeal, and presents the following issue for our review:

Did the [post-conviction] court err when it found that defense counsel had been constitutionally ineffective for failing to request a superfluous jury instruction?

We perceive no error and affirm.

BACKGROUND

Because the underlying facts of this case were fully developed in Mann's direct appeal and are not in dispute, we provide only a brief recitation for background. On April 22, 2004, between 7:00 p.m. and midnight, Ricky Prince was murdered. The State's theory of the case was that Mann and an accomplice kidnapped and murdered Prince in retaliation for Prince's cooperation with police and prosecutors in two other criminal prosecutions. At trial, Mann called four "alibi" witnesses who testified to his whereabouts on April 22, 2004, in an effort to show that he was not present when Prince was kidnapped and murdered. Despite the fact that four alibi witnesses testified in Mann's defense, Mann's trial counsel did not request an alibi jury instruction. As stated above, the jury convicted Mann of felony murder, kidnapping, and conspiracy to commit kidnapping. The court sentenced Mann to life imprisonment for felony murder, and twenty years consecutive for conspiracy to commit kidnapping.¹

In his post-conviction petition, Mann alleged, among other things, that his trial counsel rendered ineffective assistance of counsel by failing to request an alibi jury instruction.² At the hearing on Mann's post-conviction petition, Mann's trial counsel conceded that there was no reason not to request the alibi instruction. Indeed, as the State concedes in its brief, "there is no dispute of material fact. [Mann's] counsel simply overlooked requesting the ‘alibi’ jury instruction, notwithstanding his presentation of an alibi defense." As noted, the post-conviction court found that trial counsel rendered ineffective assistance by failing to request an alibi instruction and ordered a new trial.

STANDARD OF REVIEW

"The review of a postconviction court's findings regarding ineffective assistance of counsel is a mixed question of law and fact." Newton v. State , 455 Md. 341, 351, 168 A.3d 1 (2017) (citing Harris v. State , 303 Md. 685, 698, 496 A.2d 1074 (1985) ). Because appellate courts do not make findings of fact, "we defer to the factual findings of the postconviction court unless clearly erroneous." Id. "But we review the [post-conviction] court's legal conclusion regarding whether the defendant's Sixth Amendment rights were violated without deference." Id. at 351-52, 168 A.3d 1.

DISCUSSION

The Sixth Amendment of the United States Constitution and Article 21 of the Maryland Declaration of Rights guarantee all criminal defendants the right to the effective assistance of counsel. Duvall v. State , 399 Md. 210, 220-21, 923 A.2d 81 (2007). In order for a criminal defendant to successfully vacate his conviction on this basis, he must satisfy a two-prong test established in the landmark Supreme Court case Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The two-part test is as follows:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.

Id. As we shall explain, the post-conviction court correctly determined that Mann's counsel rendered deficient performance, and because this deficient performance prejudiced Mann's defense, the result of Mann's trial is unreliable.

I. DEFICIENT PERFORMANCE

At the outset, we note that Maryland Rule 4-325(c) states that "The court may, and at the request of any party shall, instruct the jury as to the applicable law and the extent to which the instructions are binding." Regarding when the court must instruct the jury as to the applicable law, the Court of Appeals has held that "[a] requested jury instruction is applicable if the evidence is sufficient to permit a jury to find its factual predicate." Bazzle v. State , 426 Md. 541, 550, 45 A.3d 166 (2012). As to the burden of establishing that predicate, "the threshold is low, as a defendant needs only to produce ‘some evidence’ that supports the requested instruction[.]" Id. at 551, 45 A.3d 166.

In assessing Strickland's deficiency prong, the Court of Appeals has stated that

the proper standard for attorney performance is that of reasonably effective assistance. "Prevailing professional norms" define what constitutes reasonably effective assistance, and all of the circumstances surrounding counsel's performance must be considered. Because it is "tempting" for both a defendant and a court to second-guess a counsel's conduct after conviction, courts must be "highly deferential" when they scrutinize counsel's performance. Reviewing courts must thus assume, until proven otherwise, that counsel's conduct fell within a broad range of reasonable professional judgment, and that counsel's conduct derived not from error but from trial strategy.

Mosley v. State , 378 Md. 548, 557-58, 836 A.2d 678 (2003) (internal citations and quotation marks omitted). In other words, the deficiency prong depends upon whether counsel's conduct was reasonable, and, in that analysis, a reviewing court will not assume error in counsel's performance.

In Schmitt v. State , 140 Md. App. 1, 26, 779 A.2d 1004 (2001), Judge Charles E. Moylan, Jr., wrote for this Court and considered whether trial counsel's strategic decision not to request an alibi instruction constituted deficient performance under Strickland . There, Schmitt was charged with first-degree murder (and other charges) for a shooting that occurred at a motel between 1:45 and 2:00 a.m. Id. at 32, 779 A.2d 1004. At trial, Schmitt's alibi witness testified that he and Schmitt arrived at the motel between 1:30 and 2:00 a.m., but that Schmitt "was inside the motel rather than outside when the fatal shots were fired." Id. Judge Moylan noted, however, that Schmitt's alibi witness "was in the bathroom of their motel room when he heard shots. [The alibi witness] testified that [Schmitt] was in the motel room when he, [the alibi witness], came out of the bathroom. He never said how long he was in the bathroom." Id. at 32-33, 779 A.2d 1004.

Addressing whether Schmitt's trial counsel rendered deficient performance by choosing not to request an alibi instruction, Judge Moylan began by noting that "Maryland's trial courts were through the early 1970's regularly referring to the alibi as an ‘affirmative defense’ and squarely allocating to the defendant the burden of persuasion as to such a defense by a preponderance of the evidence." Id. at 28, 779 A.2d 1004. In Robinson v. State , 20 Md. App. 450, 459, 316 A.2d 268 (1974), an opinion Judge Moylan also authored, this Court definitively corrected that misconception, stating that "an alibi is not an affirmative defense, placing any burden upon a defendant beyond the self-evident one of attempting to erode the State's proof to a point where it no longer convinces the fact finder beyond a reasonable doubt."

Judge Moylan initially questioned whether the facts in Schmitt sufficiently constituted evidence of an alibi. Judge Moylan defined "alibi" to mean "[a] defense that places the defendant at the relevant time of crime in a different place than the scene involved and so removed therefrom as to render it impossible for him to be the guilty party." Schmitt , 140 Md. App. at 31, 779 A.2d 1004 (quoting Black's Law Dictionary 71 (6th ed. 1990) ). Because Schmitt's alibi witness placed him at the scene of the crime at the relevant time, but simply inside rather than outside the motel room,³ Judge Moylan pondered,

Was an alibi defense generated in this case? It is a close call, but technically it may have been. It was not, however, so unmistakably identifiable as an alibi defense from way down the glen as to brand the failure to recognize it as a mark of lawyerly incompetence.

Schmitt , 140 Md. App. at 33, 779 A.2d 1004. Although noting that it was a "close call," by proceeding to analyze Strickland's deficiency prong, Judge Moylan assumed that the evidence was sufficient to generate an alibi instruction.

Judge Moylan acknowledged the deference afforded to counsel's strategic trial decisions, noting that,

The entitlement to an instruction if you want one does not imply that you are derelict for not wanting one. By analogy, a defendant is

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