State v. Taylor

STATE OF MARYLAND v. THOMAS TAYLOR

No. 2342

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2019

November 23, 2020

Circuit Court for Baltimore City

Case Nos. 106220022-23

UNREPORTED

Berger, Arthur, Gould, JJ.

Opinion by Berger, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

In 2008, Thomas Taylor, appellee, was convicted by a jury sitting in the Circuit Court for Baltimore City of crimes related to a shooting outside a convenience store.¹ Nine years later, in 2019, the circuit court granted appellee's motion for post-conviction relief and awarded him a new trial. The State filed an application for leave to appeal, which we granted and transferred the case to our appellate docket. The State raises one question on appeal, which we have slightly rephrased:

Whether the post-conviction court erred in ruling that appellee's trial counsel was ineffective for failing to object to the State prosecutor's remark in rebuttal closing argument because it lowered the burden of proof and prejudiced appellee.

For the reasons below, we agree that the post-conviction court erred and shall vacate the post-conviction court's order.

I. TRIAL FACTS

Around 2:30 p.m. on March 1, 2006, three men were shot near a convenience store located on a street corner in Northwest Baltimore. Joseph Miller, Jr. was killed and Donyel Morris and Antoine Randall² were injured. As to a motive for the shooting, the State introduced evidence that in the weeks before the shooting, someone had "tagged" the wallof the store in red spray paint with the words, "Blood," "Krip," "kill," "Shaggy," and "Gizzy." Appellee was known as Shaggy, and his friend Brandon Robertson was known as Gizzy. Various witnesses testified that the tagging marked the corner as territory of the Bloods gang; that appellee frequently wore red to signal his affiliation with that gang; and that appellee and Robertson sold drugs on the corner, which was known as an open-air drug market. The State also introduced evidence that Miller was unhappy with the tagging and the gang's increased activity on the block, and that a few hours before Miller was killed, Miller told his father that he and appellee were having a "problem."

Three main witnesses testified for the State. Grace Green was an eyewitness to the shooting. She testified that when she and Miller emerged from the convenience store just before the shooting, she saw Robertson on the corner arguing with Morris and Antoine, with the latter saying that the gang-related graffiti had to stop. Miller went over to calm the men down, and Robertson left. Appellee then emerged from behind some hedges wearing dark clothing and a red bandana, and he began shooting at the men. Green made a statement at the police station the day of the shooting and three months later, each time identifying appellee as the shooter. Green testified that she had known the victims, appellee, and Robertson for years because they "hung out in the neighborhood together."

Shauntae Randall testified that about a half an hour after the shooting, her sister called her and told her that their brother Antoine, as well as Morris and Miller had been shot. She testified that she is the mother of appellee's three children, and that she, appellee, and the victims had grown up together. She had ended her relationship with appellee in2003 after their twins were born, but she and appellee remained friends, speaking several times a week.

Shortly after the phone call with her sister, Shauntae saw Antoine, their brother, at their mother's house where he yelled, "[Y]our man shot my boy." Two days later she met with appellee, and he told her about the shooting. Appellee explained that a few hours before the shooting, he and Miller had argued about the graffiti on the wall of the convenience store, and during the argument, he felt disrespected by Miller. Appellee told her that after the argument, he had gone home, changed into dark clothing, and returned to the corner where he shot Miller, after which he accidentally dropped the gun, picked it up, and ran off. Appellee told her that he intended to shoot Miller but not Antoine or Morris. She gave a statement to the police a few days after the shooting consistent with her trial testimony.

Barry Johnson, a retired Baltimore City Police Officer, testified that while in his front yard, he saw a young black man wearing dark clothing shoot at a group of men standing on the corner. The shooter at one point dropped his gun and then ran by him. Johnson was unable to identify the shooter, but he testified that the shooter's skin complexion and hair style matched appellee's at trial.

About six weeks after the shooting, the police interviewed Morris, one of the victims. He told the police that after the shooting, appellee sent him an apology, telling him that he was not meant to be shot.

Appellee was the only witness to testify for the defense. Appellee testified that he was not the shooter but had been running errands with a friend at the time of the shooting.He denied having a "problem" with Miller or talking with Shauntae about the shooting. He admitted that he was friends with Shauntae and Green and he could think of no reason why they would say he was the shooter. He had prior convictions for possession with intent to distribute drugs, unauthorized use of an automobile, and malicious destruction of property. Appellee was subsequently convicted and sentenced as stated above.

Ten years after his conviction, appellee filed a motion for post-conviction relief, raising 11 alleged instances of ineffective assistance of counsel, including that his trial counsel failed to object to a statement by the prosecutor during rebuttal closing argument that, according to appellee, trivialized the concept of reasonable doubt and prejudiced him. During rebuttal closing argument, the State prosecutor had told the jury, without objection:

[B]eyond a reasonable doubt is proof that would convince you of the facts to the extent that you would be willing to act on that belief without hesitation. It's not any magical standard. It's the kind of proof that you need in your decision making in which car to buy, what neighborhood to live in, where to send your children to school, whether to buy the flat screen TV with the tax refund check or save it for a rainy day.

A hearing on appellee's post-conviction motion was held, at which only he and his former trial counsel testified. His trial counsel testified she had been practicing law since 1986, and up to 80% of her practice over the years has been in criminal law. She also testified that her case file on appellee had been destroyed as a result of a fire in the basement of her office building. Trial counsel was never questioned about her failure to object during the State's rebuttal closing argument, but instead, the parties focused on trial counsel's failure to cross-examine Johnson about his 911 call. In that context, the following was elicited:

[TRIAL COUNSEL]: I have to tell you that during the trial, [appellee] was what I call a yammerer.

[POST-CONVICTION COUNSEL]: A yammerer?

[TRIAL COUNSEL]: He continually talked in my ear. In fact, I came back from lunch one day and the court clerk was laughing, and she said; we've been laughing all over lunch, because did you hear the south [sic] come out of [trial counsel's] mouth when she said will you just hush, to the Defendant. So it could be because he over talked, was over talking the testimony, that I did not hear Mr. Johnson['s trial testimony] that he saw a young man with a gun in his hand. He did -- I do remember that he saw a young man running with a gun in his hand.

When appellee took the stand, he likewise was never questioned about the State's rebuttal closing remark. During the parties' arguments to the post-conviction court, appellee focused on the 911 call and made no argument about the State prosecutor's rebuttal closing remark.

The post-conviction court issued a written opinion addressing all of appellee's 11 ineffective assistance of claims, concluding that only his argument about his trial counsel's failure to object during rebuttal closing argument merited a new trial. The court found the State's remark "an improper explanation of the standard of proof beyond a reasonable doubt" under Joyner-Pitts v. State, 101 Md. App. 429 (1994), and that the error was "severe" and "likely" to have confused the jury. The court believed the error prejudiced appellee, because, even though there was "compelling eyewitness testimony" against appellee, there was no physical evidence against him. Given the erroneous reasonable doubt remark by the State prosecutor, the centrality of the reasonable doubt standard in criminal cases, and the lack of physical evidence against appellee, the post-conviction courtconcluded that the trial counsel's actions in not objecting to the reasonable doubt remark by the State fell below an objective standard of reasonable performance and prejudiced appellee.

II. DISCUSSION

The State argues the post-conviction court erred in three ways when it concluded that trial counsel was constitutionally ineffective. First, the post-conviction court's implicit finding that trial counsel had heard the State's remark on reasonable doubt was clearly erroneous, given that the State elicited evidence that appellee's trial counsel was distracted by his talking during trial. Second, the post-conviction court erred in finding trial counsel's performance deficient when she failed to object to the State prosecutor's remark because the remark did not lower the reasonable doubt standard. Third, the post-conviction court erred in finding that trial counsel's failure to object to the State's remark prejudiced appellee. Appellee addresses each of the State's arguments, arguing that the...