Cirincione v. State

THIEME, Judge. Appellant Leonard P. Cirincione was convicted on 16 April 1987 by a jury in the Circuit Court for Baltimore City, Judge Kathleen O’Ferrall Friedman presiding, of first degree murder, attempted first degree murder, and assault. He was sentenced, respectively, to life, twenty years consecutive, and three years concurrent imprisonment. This Court affirmed on appeal, Cirincione v. State, 75 Md.App. 166 , 540 A.2d 1151 , cert. denied, 313 Md. 611 , 547 A.2d 188 (1988).

On 27 September 1995, appellant timely filed with the same circuit court his first and only petition for post conviction relief, pursuant to the Maryland Post Conviction Procedure Act, Art. 27, § 645A, and Maryland Rules 4-401 to 4-408. Judge David B. Mitchell conducted hearings on the petition on 21 May and 25 June, and he denied the requested relief on 20 December 1996. This Court granted the timely filed application for leave to appeal the denial, and appellant now presents us with two questions, which we have recast as follows: I. Did the post conviction court err when it failed to find that appellant’s right to effective assistance of counsel was violated prior to trial, during trial, or cumulatively?

II

Did the post conviction court err when it failed to find the appellant’s right to a fair trial and due process were violated because the jury instruction on reasonable doubt was constitutionally deficient? For the reasons set forth herein, we will affirm. As appellant’s claims alleging ineffective assistance of counsel are necessarily quite fact-intensive, we will relate only the basic facts at this point and supplement as necessary in discussion of each claim. On the evening of 12 June 1986, several Baltimore City police officers were directing traffic in the vicinity of Memorial Stadium.

The Baltimore Orioles were playing at home that night, and the officers were facilitating the normal, pre-game parking process. Appellant approached the vicinity in his automobile and sped past a ⁴⁸¹ number of officers who were directing him to turn and to stop. He swerved and accelerated toward Officer Michael Parker, who was forced to leap out of the way of the vehicle. Appellant then turned left, accelerated again, and started heading directly toward Officers Paul Aires and Richard Miller.

Both initially signaled for appellant to stop, then both were forced to run for safety. Officer Aires was successful; the car merely brushed his clothing. Officer Miller was struck with great force. He died more than five weeks later as a result of the impact.

Appellant was tried in April 1987 for an assault on Officer Parker, attempted first degree murder of Officer Aires, and first degree murder of Officer Miller. The prosecution gave notice of its intent to seek the death penalty with regard to the latter offense. As appellant characterized in his brief to this Court, “It was undisputed at trial that Appellant acted recklessly when he struck Officer Miller with Appellant’s automobile. The issue at trial was Appellant’s mental state/capacity — at the time of the crime — to commit a willful, premeditated and deliberate murder.” The lone defense presented was voluntary intoxication due to ingestion of phencyclidine (PCP), which, although not an excuse to a crime, can rebut the existence of a specific intent.

In appellant’s case, a successful defense of voluntary intoxication would have reduced his first degree murder and attempted first degree murder charges (which require a specific intent to kill) to ones of second degree (requiring the mere general intent of malice, i.e., extreme recklessness). 1 In essence, then, appellant presented no affirmative defense to the second degree murder charges or the assault charge and focused on challenging the existence of the specific intent to kill Officers Miller and Aires. The evidence presented by the defense at trial was tightly focused on voluntary intoxication. The first thirteen defense ⁴⁸² witnesses were called for the purpose of establishing appellant’s long history of drug abuse and his intoxication on the day of the collision. Several childhood friends of appellant testified to his PCP abuse extending as far back as the eighth grade, i.e., around 1975.

Another friend testified that appellant told her five days before the collision that he intended to buy some PCP flakes that night. The day before the collision, according to another friend, appellant was sitting on a couch talking with friends when he suddenly became non-responsive and perhaps even catatonic for several minutes before returning to at least partial normalcy. Several family members who ate dinner with appellant about an hour before the collision testified that appellant was oddly calm, that he had no appetite, and that he left the table early. Two different friends who had frequently seen appellant under the influence of PCP were shown a videotape of appellant being arrested at the scene and testified that appellant appeared to be intoxicated by PCP.

The arresting officer testified that he discovered one partially smoked PCP cigarette butt in the ashtray of appellant’s car, plus two more PCP butts and a roach clip in a 35-millimeter film canister in the pouch behind the driver’s seat. Appellant took the stand and testified about his long history of drug use and his intoxication on the day of the collision. He said he had gone on a PCP binge for about a week prior to the collision, having smoked PCP every day. He claimed to have smoked six or seven PCP cigarettes on the day of the collision.

He said he started smoking them during the afternoon and then had two PCP joints within an hour of the collision. As he was driving in his car, he noticed he was starting to have trouble concentrating, and he turned down his radio. He testified that he entered a “dream state” and was only “semi-conscious.” He heard a noise like a thud and then remembered coming out of his state, “like waking up,” with police and a crowd of people around him. He claimed to have been unaware even then that he had hit a person with his car.

The final defense witness was Dr. Michael Spodak, an expert forensic psychiatrist. He testified as to the general ⁴⁸³ effects of PCP, and he explored its long-term effects on appellant. Based on appellant’s school records and a psychological report prepared in anticipation of trial by defense expert Dr. Lee Richmond, Dr. Spodak testified that appellant had a “physical brain impairment” brought on by drug abuse and that this impairment made him especially susceptible to the effects of PCP. Dr. Spodak offered his expert opinion, based on the statements of the appellant and other witnesses, that when appellant struck Officer Miller with his car appellant was “severely intoxicated from the effect of PCP” and that appellant “possessed no reason or understanding at the time of the crime.” The jury evidently rejected the voluntary intoxication defense and convicted appellant of the most serious offenses charged, including first degree and attempted first degree murder.

At the sentencing phase, the judge found appellant eligible for the death penalty but concluded that mitigating factors warranted a life sentence instead. I. Right to Effective Assistance of Counsel Appellant alleges approximately eight different errors on the part of the post conviction court below. We have recast these claims of error in a roughly chronological order and for simplicity’s sake have stated the first six claims in the form of alleged deficiencies of trial counsel: A. Pretrial failure to investigate the findings of two forensic psychiatrists from the Medical Service of the Circuit Court for Baltimore City and another psychiatrist from the Clifton T. Perkins Hospital Center. B. Pretrial failure to prepare appellant to testify on his own behalf.

C. Failure to deliver an effective opening statement. D. Failure to present exculpatory medical records from the Baltimore City Jail. E. Failure to produce Dr. Lee Richmond as a witness. ⁴⁸⁴ F. Failure to request jury instructions on depraved heart second degree murder and on the effect of expert testimony. G. The cumulative effect of trial counsel’s errors amounted to ineffective assistance of counsel.

H. The post conviction court erred when, in denying relief, it relied mainly on the fact that trial counsel did not testify as a witness at the post conviction hearings. The basic right to the assistance of an attorney at a criminal trial is guaranteed by the Sixth Amendment to the United States Constitution, made applicable to states via the Due Process Clause of the Fourteenth Amendment. State v. Renshaw, 276 Md. 259, 264 , 347 A.2d 219, 223 (1975). We have long recognized that the right to counsel entitles individuals to more than the mere presence of someone who happens to possess a law degree.

Id. at 268 , 347 A.2d at 226 . The right to counsel is the right to effective assistance of counsel, the benchmark of which is whether counsel’s advocacy was sufficient to maintain confidence that the adversarial process was capable of producing a just result. Strickland v. Washington, 466 U.S. 668, 686 , 104 S.Ct. 2052, 2063-64 , 80 L.Ed.2d 674 (1984). In reviewing a claim of ineffective assistance of counsel, we apply the test announced by the Supreme Court in Strickland .

Accordingly, one claiming ineffective assistance of counsel must demonstrate both that her counsel’s performance was deficient and that the deficient performance prejudiced her defense. Id. at 687 , 104 S.Ct. at 2064 ; Oken v. State, 343 Md. 256, 283 , 681 A.2d 30, 43 (1996). Unless both are shown, it cannot be said that the conviction resulted from a breakdown in the adversarial process. Strickland, 466 U.S. at 687 , 104 S.Ct. at 2064 .

To demonstrate deficient performance, appellant must prove “that his counsel’s acts or omissions were the result of unreasonable professional judgment and that counsel’s performance, given all the circumstances, fell below an objective standard of reasonableness considering prevailing professional norms.” Oken, 343 Md. at 283 , 681 A.2d at 43 . ⁴⁸⁵ With the benefit of hindsight, however, it is all too easy to mistake a sound but unsuccessful strategy for incompetency, and for this reason we “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” State v. Thomas, 325 Md. 160, 171 , 599 A.2d 1171, 1176 (1992) (quoting Strickland, 466 U.S. at 689 , 104 S.Ct. at 2064 ). It is thus appellant’s burden to overcome the dual presumptions that the allegedly deficient act or omission was the result of trial strategy and that the strategy was a sound one. Oken, 343 Md. at 283 , 681 A.2d at 43 . Appellant must also show that the deficient performance by counsel prejudiced the defense.

The specific burden is to show “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694 , 104 S.Ct. at 2068 ; Oken, 343 Md. at 284 , 681 A.2d at 44 . A reasonable probability of a different outcome is more than a mere “impairment” of the presentation of the defense, but appellant need not show that the result “more likely than not” would have been different. Strickland, 466 U.S. at 693 , 104 S.Ct. at 2068 ; Oken, 343 Md. at 284 , 681 A.2d 30 . A reasonable probability of a different outcome is, consistent with the purposes of the guarantee of counsel at trial, “a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694 , 104 S.Ct. at 2068 .

This analysis is not actually outcome determinative, but focuses upon the fundamental reliability of the proceeding. Lockhart v. Fretwell, 506 U.S. 364, 369 , 113 S.Ct. 838, 842 , 122 L.Ed.2d 180, 189 (1993); Oken, 343 Md. at 284 , 681 A.2d at 44 . On appeal, we make our own, independent analysis of the appellant’s claim, but we will defer to the post conviction court’s findings of historical fact, absent clear error. See State v. Thomas, 328 Md. 541, 559 , 616 A.2d 365, 374 (deferring to the post conviction court’s resolution of a factual dispute regarding what trial counsel was told but reversing as to its legal significance).

Furthermore, our review of the two ⁴⁸⁶ Strickland elements of ineffective assistance need not be taken up in any particular order. In other words, we need not find deficiency of counsel in order to dispose of a claim on the grounds of a lack of prejudice. Strickland, 466 U.S. at 697 , 104 S.Ct. at 2069 ; Oken, 343 Md. at 284 , 681 A.2d at 44 . A. Pre-trial failure to investigate Appellant alleges his counsel was constitutionally deficient for failing to investigate the findings of three forensic psychologists who could have provided favorable testimony at trial.

As we have already set forth, we must begin with the presumption that the acts or omissions of counsel are the product of reasonable professional judgment. Where a decision of counsel is based upon a merely partial investigation, the resulting tactical decision remains presumptively reasonable “precisely to the extent that reasonable professional judgments support the limitations on investigation.” Strickland, 466 U.S. at 691 , 104 S.Ct. at 2066 . In other words, counsel’s assistance is not ineffective if he either makes reasonable investigations or makes “a reasonable decision that makes particular investigations unnecessary.” Id. Even a decision not to investigate is entitled to “a heavy measure of deference to counsel’s judgment.” Id.

The facts surrounding this claim are as follows. Around September of 1986, defense counsel separately filed pleas of not competent to stand trial and not criminally responsible, which caused the court to refer appellant for psychiatric evaluation. The initial referral went to the Medical Service of the circuit court, where Drs. Jeffrey Janofsky and Jonas Rappaport conducted an initial screening of appellant.

Dr. Janofsky was not yet board certified and was doing a postdoctoral fellowship in forensic psychiatry under Dr. Rappaport, then the Chief Medical Officer. Dr. Rappaport was and is a forensic psychiatrist of great renown. In a report issued in late September or early October, the two found that appellant was competent to stand trial but that he might have a viable insanity defense, and he was referred to the Clifton T. Perkins Hospital Center for a full evaluation. A team of ⁴⁸⁷ approximately six medical personnel interviewed appellant and conducted a multidisciplinary evaluation, with Dr. Steven Siebert as the chief evaluator.

Their report of 11 February 1987 included their unanimous opinions that appellant was competent to stand trial and that at the time of the collision he was criminally responsible for his actions but voluntarily intoxicated by PCP. In his petition for post conviction relief, appellant charged that counsel’s failure to present testimony from each of these three above-named psychiatrists at trial was constitutionally deficient. At post conviction proceedings, appellant produced testimony from each psychiatrist indicating that each would have been willing to testify on behalf of appellant if subpoenaed, but that trial counsel never contacted them. Each further testified that, with modest preparation, each could have offered an expert opinion that appellant was intoxicated by PCP at the time of the crimes, that his level of intoxication was “severe,” and that the intoxication had a significant impact on appellant’s ability to perform.

More specifically, Dr. Janofsky testified to the post conviction court that appellant’s intoxication “had a substantial impact on his ability ... to think rationally.” Dr. Rappaport testified that appellant “was severely impaired in terms of his ability to know, understand, appreciate what was going on.” Dr. Siebert testified, “[T]he state of mind that resulted ... would be equivalent to a state of stupor, anesthesia, could include a total loss of consciousness and loss of awareness of surroundings.” Appellant produced two further witnesses who are experts in the field of criminal defense representation: Thomas Saunders, Esq., and Professor Fred W. Bennett, Esq. They testified to the complete unreasonableness of trial counsel’s failure even to investigate the opinions of such potentially crucial medical experts. Neither appellant nor trial counsel took the stand. The post conviction court found no deficiency of representation: While trial counsel did not interview these doctors individually prior to trial, he was nonetheless aware of their opinions because he had copies of their reports, and he was ⁴⁸⁸ consulting with Dr. Spodak regarding their findings.

Trial counsel went so far as to make a pre-trial motion to prevent the State from obtaining copies of the reports prepared by the Perkins psychologists. [Citation omitted.] Based on that motion, it is evident that trial counsel was aware of the content of the reports and made a conscious decision regarding the testimony of the psychiatrists who had prepared them. Given the inability of these psychiatrists to reach an opinion to an acceptable degree of medical certainty, the critical issue prior to the guilt determination stage of the case, trial counsel’s alleged failure to subpoena these witnesses was a valid trial tactic. Appellant has slightly recast the issue in his appeal, arguing that counsel was deficient in failing to investigate the reports. While this could be considered an unpreserved argument, the State has not pressed this issue and the interests of justice persuade us to permit the modest modification.

The appellate argument is, in effect, a rebuttal of the post conviction court’s finding that the failure to present these witnesses was a valid trial tactic. In other words, according to appellant, the failure to subpoena and call the three psychiatrists cannot be considered a valid trial tactic if counsel was deficient in failing to gather the information necessary to make a reasoned judgment as to tactics. We agree with the post conviction court that the decision not to present the testimony of any of the three psychiatrists. was a valid trial tactic. 2 The trial testimony ⁴⁸⁹ proffered from the three psychiatrists would have been essentially cumulative, and the failure to present cumulative evidence generally fails to satisfy either the deficiency prong or the prejudice prong of the Strickland test. Oken, 343 Md. at 287-88 , 681 A.2d at 45 ; Gilliam v. State, 331 Md. 651, 679 , 629 A.2d 685, 699 (1993).

Trial counsel called Dr. Spodak to testify for the defense at appellant’s trial, and as Judge Moylan noted in appellant’s direct appeal: In no sense was the opinion of Dr. Spodak austerely limited. He testified at great length. He was allowed to testify, in the abstract, as to the general effects of PCP on the mind and on behavior. He fully explicated such phenomen[a] as “chemical dependence,” “craving,” “tolerance,” “distorted sense of reality,” “depression,” “euphoria,” “difficulty with impulse control,” “auditory hallucinations,” “extremes of violence in very high doses,” “catalepsy,” “a trance-like state where you have diminished responsiveness,” and “waxing and waning of the effects of the drug.” Dr. Spodak was then allowed to explore the appellant’s long history of drug abuse.

He described the appellant’s “physical brain impairment” as indicated by school records and psychology tests showing a result of “half normal” in “organic mental function.” Dr. Spodak testified that the appellant’s “neurological impairment” made him “specifically susceptible to the effects of PCP.” He explained that the effect of PCP would be “even worse” on appellant than on others. Dr. Spodak speculated that the appellant would become “more impulsive, go into one of those trance-like states, be more susceptible to losing touch with reality,” and that the waxing and waning effect would be “more prominent with him as a result of some of the brain damage that we found on these tests.” 75 Md.App. at 178 , 540 A.2d at 1157 . Although the trial court prevented Dr. Spodak from testifying as to the ultimate fact of appellant’s capacity to form a specific intent, Dr. Spodak was permitted to state the penultimate fact that appellant “possessed no reason or understanding at the time of the crime.” Appellant has not directed our attention to any potential ⁴⁹⁰ testimony by the three un-called experts the substance of which was not already before the jury via Dr. Spodak. We find that trial counsel was not deficient for failing to present this cumulative testimony and that appellant has failed to demonstrate any prejudice by its absence.

As for appellant’s rebuttal argument that the failure to investigate was itself deficient, many of the same considerations cause the claim to fail. The post conviction court specifically found that trial counsel retained Dr. Spodak as a defense expert witness, received the two relevant medical reports, was aware of their conclusions, provided them to Dr. Spodak, consulted with him regarding them, and filed a pretrial motion to prevent the State from obtaining access to them. Although no further investigations were undertaken regarding the specific opinions contained in the reports, Dr. Spodak and trial counsel together decided to retain an additional medical expert, Dr. Richmond, to bolster Dr. Spodak’s testimony regarding the effects of long term PCP abuse on appellant. We conclude from these findings that the decision not to investigate the reports was a conscious and tactical decision, not an oversight.

The presumption, therefore, remains that the decision not to investigate further was not deficient. Appellant responds with three arguments. First, he directly challenges the conclusion that counsel’s decisions were in fact the result of trial tactics and argues that counsel’s performance throughout the representation demonstrated a marked absence of any coherent strategy regarding the use of experts. He claims that although trial counsel filed a pre-trial motion to preclude the introduction of any evidence from the Perkins psychiatrists, counsel reversed himself midway through trial when he unsuccessfully attempted to have their findings introduced through Dr. Spodak on the stand. 3 Trial counsel then reversed himself again, according to appellant, by failing to ⁴⁹¹ call the Perkins psychiatrists when Dr. Spodak was not permitted to state their findings.

Where appellant sees wild reversals, however, we see consistency. Trial counsel may have not wanted to place the Perkins psychiatrists on the stand, where they would have been subject to cross-examination by the State, even though he was willing to see their conclusions come before the jury through Dr. Spodak. Contrary to appellant’s characterization, counsel’s pre-trial motion was not a motion to suppress evidence but a motion to prevent the State from gaining access to the Perkins reports. The later efforts to place the conclusions of the Perkins doctors before the jury without calling them to the stand shows a consistent motive, since any written reports of experts actually testifying must be turned over to the prosecution.

Md. Rule 4-263(d)(2). Counsel may have been concerned with inconvenient inconsistencies contained in those reports, or he may have been concerned that the Perkins doctors, having examined appellant on behalf of the court, were not subject to the patient-psychiatrist or the client-attorney privilege. We need not identify the exact rationale, for it is appellant’s burden to show that trial counsel’s actions were unreasonable, and this he has not done. Second, appellant challenges the reasonableness of counsel’s strategy and argues that the lost testimony, although repetitive, was still crucial to his defense because it would have lent independent support to appellant’s own testimony that he was too intoxicated at the time of the collision to have formed the requisite specific intent.

He claims the testimony would have been all the more persuasive because the three doctors were “employed by the State,” and defense expert Saunders testified at the post conviction hearings that it would have had an impact on the jury if individuals with different credentials and backgrounds gave similar testimony. We find neither the testimony to be so crucial nor the strategy to be so unreasonable. Appellant has called our attention to numerous cases involving failure to investigate potential testimony, but ⁴⁹² in only three of these cases was counsel found deficient where the substance of the testimony was already before the jury through another witness. See Code v. Montgomery, 799 F.2d 1481, 1483-84 (11th Cir.1986); Nealy v. Cabana, 764 F.2d 1173, 1177-80 (5th Cir.1985); In re Jones, 13 Cal.4th 552 , 54 Cal.Rptr.2d 52, 59-60 , 917 P.2d 1175, 1182-83 (1996).

In each of these cases, the testimony already presented had come from the defendant alone, his version of events was a matter of dispute, and the missing witness could have given independent corroboration of the defendant’s version. In appellant’s case, the trial dispute was not over whether PCP causes intoxication but whether appellant was sufficiently intoxicated. The experts’ opinions on this issue were not of independent origin but were almost entirely dependent on appellant’s own version of events, and thus the corroborative value was not very high. And, whatever corroboration could have been achieved through such expert testimony was itself already before the jury through Dr. Spodak.

Ultimately, a decision whether to call any particular witness is essentially tactical in nature; State v. Lloyd, 48 Md.App. 535, 540 , 429 A.2d 244, 247 (1981); Shelton v. State, 3 Md.App. 394, 401 , 239 A.2d 610, 615 (1968); and we perceive no hard and fast rule that a decision not to call supplementary experts will necessarily be an inferior decision. Trial counsel put together a very coherent presentation of the defense’s case, with multiple witnesses testifying to appellant’s patterns of drug use, appellant’s own testimony of drug use that day, and concluding expert opinions that appellant had an augmented susceptibility to PCP and possessed no ability to reason at the time of the crime. Dr. Spodak’s professional reputation was (and remains) excellent, and at the time he was in charge of administering all services at Perkins hospital pertaining to the criminal justice system. Whatever might have been gained by presenting supplemental but repetitive expert opinions also might have been reasonably expected to result in loss of dramatic impact, confusing minor variations of opinion, or damaging cross-examination into inconsistent statements made by appellant.

To claim that presenting this additional testimony would have ⁴⁹³ been more persuasive is an appeal to the same “distorting effects of hindsight” which we are called upon to eliminate in our assessment of trial counsel’s performance. Strickland, 466 U.S. at 689 , 104 S.Ct. at 2065 . We cannot know whether a different trial strategy would have led to a different result, but the fact that the selected strategy was ultimately unsuccessful does not mean that it was an unreasonable choice. Lastly, appellant makes much of the fact that this was a death penalty case and that in such cases there would have been no excuse for failing to investigate every possible lead.

While the severity of the potential sentence may be a factor in assessing counsel’s performance, the fact that this was a capital trial does not alter the standards for effective assistance of counsel. After all, Strickland itself was a death penalty case. Furthermore, appellant’s argument is weakened by the fact that the death penalty was not imposed in this case, rendering harmless any deficiency arising solely from the capital nature of his trial. Trial counsel investigated and procured the thoroughly adequate expert opinions of Drs.

Spodak and Richmond, and his valid decision not to investigate the similar opinions of other experts is not rendered infirm by the potential for a death penalty. In sum, having made a valid decision to rely on particular experts for the necessary testimony at trial, counsel was under no constitutional duty to conduct further investigations into the potential testimony of other experts. The decision not to investigate resulted in no deficiency of representation and no prejudice to appellant, and appellant was not denied effective assistance of counsel thereby. B. Pretrial failure to prepare appellant to testify Appellant’s petition challenged the adequacy of his representation by asserting that trial counsel failed to prepare appellant to take the stand in his own defense at trial.

This failure to prepare him resulted in prejudice, appellant claimed, because it “caused him to appear unsure of his answers and less credible before the jury.” In support of this contention, appellant placed primary reliance on an exchange recorded in ⁴⁹⁴ the trial transcript near the conclusion of a rigorous cross-examination conducted by then Assistant State’s Attorney Timothy Doory: Q. How long is it that you have had to sit down and think about what your testimony was going to be here in the courtroom? [Defense Counsel]: Objection, Your Honor. THE COURT: Overruled. A. How long? I hadn’t planned any of this, I am telling the jury from the bottom of my heart the absolute truth, and I thought about what I was going to say when they asked me the questions.

I am going to tell the jury the absolute truth of what I know about this. I hadn’t planned any of this. Q. None of this? A. I had no idea what questions this man was going to ask me or even my attorney, we hadn’t gone over this, I hadn’t planned any of this.

The questions are asked of me, I am telling the absolute truth from the bottom of my heart. I am telling you the truth. Q. You haven’t gone over with anybody what you are going to testify here to? A. The last time my attorney talked to me, he gave me a statement, the statement that I had made, and he gave that to me to read.

He said this is the statement that you made, and I said I don’t need to read it, I know what the statement is. Q. That’s the entire preparation and planning you have made to come here and testify? A. Well, I think I am telling you the truth. So, from the truth, what do you need to plan?

I am telling you like it is. I mean, I am telling it like it is, I am not trying to conceal anything. At the post conviction hearings, neither appellant nor trial counsel took the stand, so the post conviction court lacked the benefit of live testimony by an eyewitness as to what had in ⁴⁹⁵ fact occurred between appellant and trial counsel prior to appellant’s trial testimony. Instead, appellant presented expert testimony through Prof.

Bennett that trial counsel had failed to prepare appellant to take the stand. On direct examination, Prof. Bennett stated: [A]s I now find out talking to Mr. Cirincione, and it’s apparent from the cross-examination, page 70 of his cross-examination on April 15th, when he said on cross, “I’ve literally not talked to my attorney about my testimony.” [Trial counsel], in a capital murder case, put on his client without going through a Q & A or without — and without having him go through a mock cross-examination. That to me is gross negligence.

And Mr. Doory was very, very tough on his cross-examination and good on his cross-examination of Mr. Cirincione, and he was utterly ill prepared for it, totally ill prepared and it hurt his case in my judgment---- Prof. Bennett was asked some follow-up questions on cross-examination (by the same Assistant State’s Attorney who prosecuted appellant’s trial). Prof. Bennett said the following: A. I’m saying in this case, from my interview of Mr. Cirincione myself at the Maryland Penitentiary, he was not prepared by [trial counsel] either in a Q & A or in, what I’d say [is] the weaker way, topical direct and cross.

Q. What area did you find that he was defective in? A. The Defendant was not prepared for a grueling cross-examination by you [Doory]. [T]he one area that was especially visible to the jury is that he lost his cool on the stand. It did [not] appear that he was counseled in that regards and he didn’t — he didn’t even have the date correct of the incident. I mean, if you read the direct and cross, the inference that’s clear from the record is and as picked up very ⁴⁹⁶ clearly by Judge Friedman, not prepared, did not make a good witness.

Q. Even extremely well-prepared witnesses are sometimes touched and get angry, don’t [they]? A. This went beyond that. The post conviction court found a lack of evidence to support appellant’s contention that trial counsel failed to prepare appellant, and we agree. To begin with, there is no credible, direct evidence that preparation did not occur.

As we have already pointed out, neither appellant nor trial counsel (who appear to be the only persons with direct knowledge of what transpired between them) testified at the post conviction proceedings. The court had before it appellant’s cross-examination statements from the trial transcript to the effect that no preparation occurred, but the post conviction court found that these statements are simply not creditable. We must concur. The statements are an entirely self-serving effort to counter the prosecutor’s thinly-veiled implication that appellant’s testimony had been coached.

Appellant never even denies in thesé statements that he met with counsel in anticipation of taking the stand. Although Prof. Bennet claims that his expert opinion was based in part on his personal interview with appellant, even Prof. Bennet was not able to place before the court any direct evidence, in the form of statements by appellant or otherwise, that the pre-trial preparation did not in fact occur.

The only remaining basis on which one could conclude that trial counsel did not prepare appellant to testify is to draw inferences from the evidence of record, consisting of Prof. Bennet’s post conviction testimony and the entire transcript of appellant’s trial testimony. This record would support findings that, on cross-examination, appellant lost his “cool,” was at times ineloquent, tripped over some relevant facts, and left a poor overall impression with the jury. This evidence (coupled with the jury’s verdict) would also support the conclusion that appellant made a less than stellar witness.

Appellant ⁴⁹⁷ argues that this evidence also demands the further conclusion that trial counsel’s deficient preparation must be the cause of appellant’s testimonial failings, and he appeals to us to reverse the lower court for refusing to draw this conclusion. We decline to do so, primarily because the evidence equally supports the less-attenuated conclusion that the Assistant State’s Attorney conducted a masterful cross-examination or that appellant simply had a credibility problem in this case. With all due respect to Prof. Bennet, who did conclude that trial counsel failed to prepare appellant, we will not disturb the lower court’s determination that appellant failed to produce the evidence necessary to support his claim.

C. Failure to deliver an effective opening statement Appellant claims that trial counsel was deficient for failing to deliver an effective opening statement. Specifically, appellant claims that the opening statement was too cursory and that it failed to present a coherent theory of the case. At the post conviction hearing, Prof. Bennett testified that the opening statement was flawed for being too short, for failing to personalize the appellant, for failing to recite the facts, for failing to tell the jury what verdict to reach, and for, in effect, apologizing to the jury.

The post conviction court found neither deficiency nor prejudice: Petitioner’s expert witness Bennett testified that trial counsel’s opening statement was only six pages long. However, Bennett also testified that the State’s opening statement was only eight pages in length. This Court can not find that the length of an opening statement is tantamount to deficient representation. No authority for such a conclusion has been suggested to the Court and none was found to support his allegation.

After examining trial counsel’s opening statement, the Court further finds that trial counsel did present a theory of the case. His theory was that this was not a case of first-degree murder because it was not willful, deliberate and premeditated. Furthermore, trial counsel focused on the issue of lack of motive, and offered ⁴⁹⁸ the explanation that Petitioner had ingested PCP and blacked out at the time of the incident. The Court finds that trial counsel’s opening statement was not deficient and did not prejudice Petitioner’s case.

We agree with the lower court. The opening statement was entirely adequate under the circumstances. The length of the opening statement is not of itself dispositive of either prong of the Strickland test, and there is no constitutional rule that counsel must employ any particular rhetorical technique in the opening statement. In fact, under certain circumstances it is not ineffective assistance to decline to deliver any opening statement at all, even in a death penalty case.

Hunt v. Smith, 856 F.Supp. 251, 257 (D.Md.1994), aff'd, 57 F.3d 1327 (4th Cir.1995), cert. denied, — U.S.-, 116 S.Ct. 724 , 133 L.Ed.2d 676 (1996). Here, trial counsel explained in the opening statement the defense theory that appellant blacked out due to PCP intoxication. Although trial counsel voiced some compassion for the victim and the victim’s family, he in no way offered an apology. It was not deficient to fail to recite the facts, as they were largely undisputed in the case; the crucial issues of specific intent and intoxication were adequately covered in the statement.

There was no deficiency for failing to explain the legal tests for second degree murder or voluntary intoxication at this stage; it was enough to inform the jury that intoxication made him black out. In his brief to this Court, appellant for the first time faults trial counsel for promising in the opening statement to produce “doctors and psychiatrists” and then only producing one such witness at trial. This issue is not preserved for our review according to Rule 8-131(a), but we note that appellant’s argument badly mischaracterizes counsel’s statement. D. Failure to present exculpatory medical records from the Baltimore City Jail.

Appellant petitioned for post conviction relief based on trial counsel’s failure “to fully investigate Petitioner’s condition when he was re-arrested on 13 June 1986 and charged with attempted murder.” On appeal the issue is re-cast as a ⁴⁹⁹ “failure to present Appellant’s exculpatory medical records from the Baltimore City Jail.” The post conviction court addressed only the issue of failure to investigate and was silent as to any issue of failure to present resulting evidence. Upon reviewing appellant’s petition, we are convinced that it stated a claim of failure to investigate only, and the fact that such evidence was not introduced at trial was brought up merely to demonstrate prejudice arising from the failure to investigate. The claim based on failure to investigate is preserved for our review; the claim based on failure to present evidence is not. Md. Rule 8-131 (a).

We confíne our review to the point preserved. Appellant was initially arrested on 12 June 1986 at the scene of the collision near Memorial Stadium. At that time, he was charged -with reckless driving, willfully disobeying the lawful address of a police officer, and driving under the influence of drugs and alcohol. He posted bail at 2:30 a.m. the next morning, and he was not re-arrested until approximately 2:00 p.m. on 13 June, this time on charges of attempted murder.

On 14 June, appellant was transferred to the Baltimore City Jail Prison Hospital and admitted to the psychiatric ward. During his approximately four weeks at the hospital, various entries were made in appellant’s medical records regarding his behavior and condition. Appellant highlights entries stating he was “agitated,” “disoriented,” and “violent,” and that he was suffering from “paranoid behavior,” was placed “on Ward 3 for close observation,” should “be monitored frequently,” and was on medication when he was discharged back to the general population of the jail. Appellant claims that counsel’s