State v. Thaniel

238 Md.App. 343

192 A.3d 804

STATE of Maryland

v.Travis THANIEL

No. 936, Sept. Term, 2017

Court of Special Appeals of Maryland.

August 29, 2018

Argued by: Michelle M. Martin (Brian E. Frosh, Atty. Gen., on the brief) Baltimore, MD, for Appellant.

Argued by: Kenneth E. McPherson, Riverdale, MD (Paul B. DeWolfe, Public Defender, on the brief) Baltimore, MD, for Appellee.

Panel: Eyler, Deborah S., Meredith, Lynne A. Battaglia (Senior Judge, Specially Assigned), JJ.

Battaglia, J.

In 2005, a jury, sitting in the Circuit Court for Baltimore City, convicted Travis Thaniel, appellee, of first-degree murder of Shawn Boston, attempted second-degree murder of Catherine Jones, and use of a handgun in the commission of a crime of violence. The court thereafter sentenced Thaniel to life imprisonment for first-degree murder and consecutive terms of thirty years for attempted second-degree murder and twenty years for use of a handgun in the commission of a crime of violence. A panel of this Court affirmed his convictions on direct appeal.

Thaniel v. State , No. 1374, September Term, 2005 (filed Sept. 25, 2007),cert. denied , 402 Md. 354, 936 A.2d 851 (2007).

Thaniel subsequently filed a postconviction petition, raising claims of ineffective assistance of both trial and appellate counsel. The postconviction court granted his petition and ordered a new trial. The State thereafter filed an application for leave to appeal, which we granted and transferred the case to our appellate docket. The State now raises the following questions for our consideration:

I. Whether the postconviction court erred in concluding that trial counsel was ineffective in agreeing to close the courtroom during jury selection;

II. Whether the postconviction court erred in concluding that trial counsel was ineffective in failing to object when the trial court and counsel addressed a note from the jury in Thaniel's absence;

III. Whether the postconviction court erred in concluding that appellate counsel was ineffective in failing to raise on appeal an unpreserved claim that the trial court erred in addressing a note from the jury in Thaniel's absence; and

IV. Whether the postconviction court erred in concluding that the cumulative effect of trial counsel's alleged errors warranted postconviction relief.

We find merit in the State's contentions and shall vacate the postconviction court's order but remand, because the State has not challenged one of the postconviction court's rulings, by which it found that trial counsel had been ineffective in failing to file motions to modify sentence and for sentence review by a three-judge panel. Because that ruling stands, we shall direct that the postconviction court issue an order permitting Thaniel to file belated motions to modify sentence and for sentence review by a three-judge panel.

BACKGROUND

On February 6, 2004, Shawn "Peanut" Boston was driving his car through East Baltimore, accompanied by Catherine Jones, the mother of his son. Thaniel v. State , No. 1374, September Term, 2005, slip op. at 3, 4-5. At approximately 9:00 p.m., while they were stopped at a traffic light, Thaniel entered the vehicle and sat in the rear seat. Id. at 2, 5. "As they turned onto Eager Street, near her grandmother's residence, [Thaniel] said ‘Man, you know what's up. Kick that shit out.’ " Id. at 5. Boston muttered, "Aw, shit," stopped the car, took an item from beneath his seat, and handed it to Thaniel. Id. Thaniel then said, "this was for my man E," and, in Jones's words, "started shooting" Boston and Jones. Id.

Boston died from "multiple gunshot wounds." Id. at 3. Ms. Jones survived but was seriously injured and endured an extensive hospital stay. When police detectives first attempted to interview her about the shooting, seventeen days afterwards, she "could mouth words, but she could not talk." Id. She stated, at that time, that "she had not seen the shooter and that no one else" had been in the car with her, besides Boston. Id. She further stated that she was "scared and wanted protection." Id. at 3-4. Ultimately, Jones decided to cooperate with the police, having decided that Thaniel "shouldn't get away with this because he tried to take my life, and he took my son's father['s] life." Id. at 5.

There were two other witnesses to the shooting, Latisha Privette and Jerome Wiggs. Privette had been a passenger in Wiggs's car on the night of the shooting. Id. at 2. As they turned onto Eager Street, she observed a man exiting the back of a vehicle and "shooting through" the driver's side window of the vehicle as he did so. Id. Although she could not see the shooter's face, she described him as "tall and dark skinned," wearing a ski cap, "with a thick build." Id. & n.4. Privette called 911 and told the operator what she had seen. Id. at 2.

Wiggs also observed the man shooting through the driver's side window of Boston's car. He described the shooter as wearing "baggy clothes" and a skull cap and "estimated that he [had] heard ‘at least ten shots.’ " Id. Wiggs stated that he then "got the hell out of there." Id. at 3.

In addition to the two eyewitnesses to the crime, a third person, Quante Bell, an acquaintance of Thaniel and Jones, gave a statement to police. In April of 2004, several months after Boston's murder, Bell had been arrested in an unrelated case. While being interrogated, he told Baltimore City Police Detective Raymond W. Laslett, the lead detective in the Boston case, that he had been privy to a conversation between his brother and Thaniel. According to Bell, Thaniel had told Bell's brother that he had shot Boston in the chest. (Later, at Thaniel's trial, Bell would disavow his statement, which was then introduced into evidence as a prior inconsistent statement.)

In June of 2004, a grand jury returned two indictments, charging Thaniel with a variety of offenses related to the February 6th shooting. The first indictment charged Thaniel with first-degree murder of Shawn Boston; use of a handgun in the commission of a crime of a felony or violence; and wearing, carrying, or transporting a handgun. The second charged him with attempted first- and second-degree murder of Catherine Jones; first- and second-degree assault of the same victim; use of a handgun in the commission of a crime of a felony or violence; and wearing, carrying, or transporting a handgun. In June of 2005, a trial was held on those charges.

As jury selection was about to begin, the following exchange, which forms the basis for one of Thaniel's ineffective assistance claims, took place:

[Trial counsel had just been excused from being in the courtroom momentarily while the bailiff arranged for the venire to enter the courtroom.]

THE CLERK: When you do this selection should I have all of them wait outside? We're going to use all 85 chairs.

THE COURT: Oh, you mean for the -- when we select the jury?

THE CLERK: Yeah.

THE COURT: Are they -- are we going to need -- are we going to require all -- all the spaces in the courtroom?

THE CLERK: To get them close up as possible so they [will] be able to hear their number.

THE COURT: Well, they -- I can't clear the courtroom for jury selection. I'm not allowed to do that.

THE CLERK: Oh, okay.

THE COURT: So I would suggest -- Mr. [prosecutor], and, Mr. [trial counsel], could you approach for a second again, please?

* * *

THE CLERK: Mr. [trial counsel]?

THE COURT: Mr. [trial counsel], could you approach for a minute, please?

* * *

(Counsel and the defendant approached the bench, and the following ensued:)

THE COURT: Okay.

The clerk's expressed some concern that there may be not enough room for all the -- especially the way the people are spread out now. Now, I -- I'm assuming that there are some people here on behalf of the defendant and there's some people here on behalf of the victim.

[TRIAL COUNSEL]: I don't know, Your Honor. I told my people yesterday, anticipating this problem, that nothing really of consequence is going to happen until the afternoon. So I'm not sure --

THE COURT: Do we have -- do you have people here that you recognize?

[TRIAL COUNSEL]: Anybody there?

THE COURT: People on behalf of the defendant?

[TRIAL COUNSEL]: Huh?

THE DEFENDANT: Yes. (Inaudible).

[TRIAL COUNSEL]: Yeah.

THE COURT: He heard that. Present in the courtroom? Well, what I would suggest -- I don't know who's who. I mean, I was going to have everybody move to one section but I don't want people who are at enmity with one another sitting next to each other.

[THE STATE]: Right. I don't think that would be a good idea.

THE COURT: So, --

[TRIAL COUNSEL]: I -- I don't care if you send them outside, Judge. Because there's no room.

THE COURT: I can't on my motion clear the courtroom.

[TRIAL COUNSEL]: I was going to ask that -- them to step out.

THE COURT: During jury selection?

[TRIAL COUNSEL]: Yes. Just because I figured that you --

THE COURT: I'll do -- I'll do it. But can I do that?

[TRIAL COUNSEL]: I'll do it.

THE COURT: Is it -- is it --

THE CLERK: We usually do it, Your Honor.

THE COURT: Does that in any way violate the defendant's constitutional rights?

THE CLERK: No. We -- we usually do it when we have a large panel. We have (inaudible).

THE COURT: Yeah. You're all agreeing that it's not going to violate his rights for a public trial --

[THE STATE]: Well, I can only deal with --

[TRIAL COUNSEL]: We have no objection. We have no objection.

THE COURT: All right. Fine. I'll just ask them if they just could just step outside while we select the jury.

In fact, I might as well just excuse them until this afternoon because that's all we're going to do this morning.

* * *

THE COURT: All right. Ladies and Gentlemen, who -- those of you who are here as spectators in this case, I'm going to ask you, and this based upon an agreement between the State's Attorney and the defense attorney, to step outside.

The reason why I'm asking you to do this is because we have a large number of jurors coming over here to select a jury from, and I can't have -- I can't -- it's improper to leave the spectators and the jurors

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