State v. Mann

STATE OF MARYLAND v. CHRISTOPHER MANN

No. 29

COURT OF APPEALS OF MARYLAND

Argued: October 31, 2019

September Term, 2019

December 19, 2019

INEFFECTIVE ASSISTANCE OF COUNSEL - PREJUDICE PRONG - PURPORTED ALIBI WITNESSES - Court of Appeals held that petitioner for postconviction relief failed to establish that his trial counsel rendered ineffective assistance of counsel by not requesting alibi jury instruction, as petitioner had failed to satisfy prejudice prong of test set forth in Strickland v. Washington, 466 U.S. 668 (1984), i.e., burden to prove that there was reasonable probability, or substantial or significant possibility, that jury would have acquitted him if his trial counsel had requested alibi jury instruction and trial court had given instruction. Circumstance that petitioner's trial counsel did not request alibi jury instruction did not prejudice petitioner because, upon closer inspection, none of four purported alibi witnesses' testimony led to conclusion that petitioner could not have been at murder scene when victim was killed, and trial court's giving of instructions on State's burden to prove guilt beyond a reasonable doubt undercut claim of prejudice.

Circuit Court for Baltimore City

Case No. 104002009 to 104002014

Barbera, C.J. McDonald Watts Hotten Booth Harrell, Glenn T., Jr. (Senior Judge, Specially Assigned) Greene, Clayton, Jr. (Senior Judge, Specially Assigned), JJ.

Opinion by Watts, J.

Barbera, C.J., and Hotten, J., dissent.

An alibi is "[a] defense [that is] based on the physical impossibility of a defendant's guilt by placing the defendant in a location other than the scene of the crime at the relevant time." Alibi, Black's Law Dictionary (11th ed. 2019). An alibi is not an affirmative defense—that is, a defense that "[t]he defendant bears the burden of proving[.]" Affirmative Defense, Black's Law Dictionary. "An alibi is not an affirmative defense" because it "simply negates an element of the crime"—namely, the allegation that the defendant was the one who committed the crime, which the State has the burden of proving beyond a reasonable doubt. Harris v. State, 458 Md. 370, 411 n.31, 182 A.3d 821, 845 n.31 (2018) (citations omitted).

Maryland Criminal Pattern Jury Instruction 5:00, addressing alibis, provides:

You have heard evidence that the defendant was not present when the crime was committed. You should consider this evidence along with all other evidence in this case. In order to convict the defendant, the State must prove, beyond a reasonable doubt, that the crime was committed and the defendant committed it.

Although Maryland Criminal Pattern Jury Instruction 5:00 is known as an "alibi jury instruction," it does not use the word "alibi" because doing so could "incorrectly suggest that alibi is an affirmative defense." MPJI-Cr 5:00 cmt. Where an alibi jury instruction is applicable under a case's facts, on request, a trial court must give an alibi jury instruction. See Smith v. State, 302 Md. 175, 180-81, 486 A.2d 196, 198-99 (1985).

This case requires us to determine whether a petitioner for postconviction relief has satisfied, under Strickland v. Washington, 466 U.S. 668 (1984), the burden of proving that he was prejudiced by his trial counsel not requesting, and the trial court not giving, an alibi jury instruction where purported alibi witnesses testified at trial.

In the Circuit Court for Baltimore City, the State, Petitioner, charged Christopher "Crack" Mann, Respondent, with first-degree felony murder, kidnapping, conspiracy to kidnap, and other crimes. At trial, the State offered evidence of the following events. On April 22, 2003, sometime between 6:43 p.m. and 7:03 p.m., Mann and two of his friends, Tayvon "Tay" Whetstone and Kenneth "Kane" / "Kenny" Fleet,¹ confronted the victim, Ricky "Little Rick" Prince, at a McDonald's on Liberty Road near its intersection with Rolling Road, about him having been a witness for the State in a criminal case. Fleet got into Prince's vehicle and drove away. Whetstone told Prince that he would take Prince to his vehicle. Mann, Whetstone, and Prince got into a vehicle. Ultimately, Whetstone drove to the area behind a nightclub called "Fantasies," which is in the Curtis Bay neighborhood of Baltimore City. There, in Mann's presence, sometime during the evening of April 22, 2003, Whetstone shot Prince.

Mann's trial counsel called four alleged alibi witnesses, who purported to account for Mann's whereabouts from approximately 7:30 p.m. or 7:45 p.m. on April 22, 2003 to the morning of April 23, 2003. Mann's trial counsel did not request, and the circuit court did not give, an alibi jury instruction.

After being convicted and pursuing an unsuccessful direct appeal, Mann petitioned for postconviction relief, contending that his trial counsel provided ineffective assistance of counsel by not requesting an alibi jury instruction. The circuit court agreed and ordereda new trial. The State successfully applied for leave to appeal, and the Court of Special Appeals affirmed. The State filed a petition for a writ of certiorari, which this Court granted.

Before us, the State contends that an alibi jury instruction would not have significantly affected the jury's deliberations. Mann responds that it is reasonably possible that, in the absence of an alibi jury instruction, the jury believed that he had the burden to prove an alibi or did not consider the purported alibi witnesses' testimony at all. We hold that Mann has failed to satisfy the burden to prove that there is a reasonable probability, or a substantial or significant possibility, that the jury would have acquitted him if his trial counsel had requested an alibi jury instruction and the circuit court had given the instruction. The circumstance that Mann's trial counsel did not request an alibi jury instruction did not prejudice Mann because, upon closer inspection, none of the four purported alibi witnesses' testimony indicated that Mann could not have been at the murder scene when Whetstone shot Prince, and the circuit court's giving of other instructions regarding the State's burden to prove guilt beyond a reasonable doubt diminishes the claim of prejudice.

BACKGROUND

Trial and Direct Appeal

At trial, as a witness for the State, Detective Kevin Klimko of the Baltimore County Police Department testified that, on April 15, 2003, Jerrard "Tick" Bazemore pled guilty to the murder of Charles Edward Sharp. During Mr. Bazemore's guilty plea hearing, the prosecutor in that matter proffered that, had there been a trial, Prince—the murder victimin this case—would have testified that he provided Bazemore with the gun that was used to fatally shoot Sharp. After Bazemore said that he was pleading guilty, two individuals in the gallery "stood up and said[:] 'You don't have to go down like that, man,' and pretty much objected to the fact that he was pleading guilty." The two individuals then left the courtroom. Detective Klimko testified that he would not recognize the two individuals if he saw them again.

As a witness for the State, Detective Gerald D'Angelo of the Baltimore County Police Department testified that, on April 23, 2003, he interviewed Mann, who said that, on the evening of April 22, 2003, he went to the McDonald's to get something to eat and saw Prince there. Mann said that he and Prince calmly talked about Prince having been a witness against Bazemore, and that, while they were talking, someone got into Prince's vehicle and drove away. Detective D'Angelo responded that he did not believe that Mann had told the truth. Detective D'Angelo also said that he knew that Mann had gone to the McDonald's with two other individuals, and that his conversation with Prince had been heated. During the interview, Mann acknowledged that he had not told the truth. Mann said that he had been driving a Ford Escort that belonged to his girlfriend, Tanea Jenkins, and needed to return it to her before her shift at a Target² ended. Mann said that two of his friends, Whetstone and Fleet, gave him a ride from the Target to the McDonald's in a black 1991 Chevrolet Caprice that belonged to Whetstone's girlfriend. Mann acknowledged that he had gotten into a heated argument with Prince about Prince having been, as Mann putit, a "snitch" against Bazemore. Mann said that Fleet got into Prince's vehicle, a Toyota Corolla, and drove away, and that he told Prince that that he would get Prince's vehicle back for him. Mann said that he and Whetstone went to Mann's father's house,³ and then returned to the McDonald's.

While testifying, Detective D'Angelo read aloud a statement that Mann had handwritten and signed. In his written statement, Mann alleged the following events, which we summarize. On April 22, 2003, at 11 a.m. or 11:30 a.m., Mann drove Jenkins to the Target. Afterward, Mann visited one of his friends, Jeffrey Johnson, at his house.⁴ At approximately 1:45 p.m. or 2 p.m., Mann left Johnson's house. At approximately 4:30 p.m. or 5 p.m., Mann went to his mother's house.⁵ Mann met with Whetstone and Fleet, who followed him to the Target. At approximately 6:30 p.m. or 6:45 p.m., Mann dropped Jenkins's vehicle off at the Target. Jenkins gave Mann six dollars, and he, Whetstone, and Fleet left the Target. At approximately 7 p.m., Mann, Whetstone, and Fleet arrived at the McDonald's. There, Mann talked to Prince about Bazemore. While Mann was talking to Prince, Fleet got into Prince's vehicle and drove away. Mann and Whetstone went to Mann's father's house, where they stayed for at least five to ten minutes. Afterward, Mann and Whetstone went to Johnson's house. After that, Mann and Johnson's girlfriend wentto Mann's mother's house. Mann requested a ride from Jenkins, who picked him up, dropped one of her friends off, and drove to Mann's father's house, where they spent the night.

As a witness for the State, Detective Raymond Laslett of the Baltimore City Police Department testified that he recovered a recording that was made...