Coleman v. State

GREENE, J. Ogden Coleman, II, (“Petitioner”) was tried by a jury in the Circuit Court for Baltimore County in July 2005 and convicted of first degree murder and conspiracy to commit first degree murder in the death of Quatrina Johnson. The court sentenced him to life without parole for first degree murder and to life imprisonment for conspiracy, to be served consecutively. On August 27, 2009, Coleman filed a petition for post-conviction relief pursuant to Md.Code (2001, 2005 Cum.Supp.), § 7-102 of the Criminal Procedure Article, in the Circuit Court for Baltimore County, alleging ineffective assistance of counsel. The Circuit Court denied the petition without reaching the merits of the specific claim at issue in the present case. ³²⁵ Coleman filed an Application for Leave to Appeal, which the Court of Special Appeals denied.

Thereafter, Coleman filed a motion for reconsideration of the denial of his Application for Leave to Appeal, and the intermediate appellate court issued an Order granting the motion and recalling their earlier opinion. On reconsideration of Coleman’s Application for Leave to Appeal, the intermediate appellate court determined that the Application lacked merit because Coleman was not prejudiced by the alleged errors of his trial counsel. The court then denied Coleman’s Application. On November 16, 2012, we granted certiorari, Coleman v. State, 429 Md. 303 , 55 A.3d 906 (2012), to answer the following question: Whether the Petitioner was prejudiced, in the Strickland v. Washington context, when trial counsel failed to object to the roughly 30 instances during trial where the State admitted evidence that Petitioner had remained silent in the face of police questioning/accusation while Petitioner was in custody and after he had been issued Miranda warnings?

We shall hold that Coleman received ineffective assistance of counsel and that he is therefore entitled to a new trial. This holding is based on trial counsel’s failure to object to the State’s numerous references to Coleman’s post-Miranda silence, which constituted deficient performance, and the substantial possibility that Coleman suffered prejudice as a result of the deficiency. FACTUAL AND PROCEDURAL HISTORY The State charged Petitioner in the Circuit Court for Baltimore County with (1) first degree murder, and (2) conspiracy to commit first degree murder, in the death of Quatrina Johnson. Quatrina Johnson was the foster sister of Shaday McKinnon.

McKinnon was involved in a sexual relationship with Jason Richards when she was 13 years old and he was 24. After McKinnon and Johnson’s foster mother, Sheila Porter, found out about the relationship, Porter contacted the police, and Richards was charged with rape. Richards apparently decided that if someone were to kill McKinnon, he could avoid ³²⁶ prosecution for the crime, so he enlisted Coleman, as well as Erie Watkins and Michael Shelton, to help him. On July 19, 2004, Richards went to McKinnon’s house and persuaded her to run away with him to California; McKinnon asked Johnson to come along, and they both left with Richards and Watkins.

The group was eventually joined by Shelton, Coleman, and Coleman’s girlfriend, Sandra Atueyi. On the evening of July 20, 2004, the group drove two cars to Benjamin Franklin Middle School in Baltimore City, where Johnson was attacked by one of the men. 1 During the attack, Johnson, apparently, was hit on the head with a board, and then choked; the State and the defense theories differ as to who actually choked Johnson. Neither McKinnon nor Atueyi witnessed the attack. Johnson’s body was then placed in the trunk of Watkins’s car, and subsequently moved to another vehicle after discovering Watkins’s car had a flat tire.

The body was transported to Gwynnvale Park in Baltimore County, where Coleman and Shelton poured gasoline on the body and set it on fire. According to the autopsy, Johnson likely died from asphyxiation, although it was inconclusive as to the cause of the asphyxiation. 2 There was also a possibility that blunt force trauma to the head was the cause of death. The issue before this Court specifically concerns the circumstances surrounding Coleman’s arrest and subsequent questioning by police on July 29, 2004. Coleman was advised of his Miranda 3 rights twice before Detective Gary Childs of the ³²⁷ Baltimore County Police Department interrogated him.

Coleman initially denied having any knowledge of the crime during his interview, but subsequently revealed that he was present and assisted in the cover up. Detective Childs, during his testimony at Coleman’s trial in July 2005, read the interrogation statement into the record, and there were numerous instances where Coleman’s decision to remain silent was noted. Excerpts from Detective Childs’s testimony are reproduced below (emphasis added): State of Maryland: What did [Petitioner] tell you, Detective? Detective Childs: He was asked several times about the individual and when he knew she was dead.

He denied at first any knowledge of seeing a dead girl or that he did anything for anybody. He stated the first time that, [t]he only thing I know is one of the girls hopped in my car. Coleman — we then asked him to talk to us about the other girl, the victim. Coleman said either she was — I said to Coleman, [e]ither she was dead when you first saw her or she was alive and you were involved in this.

He remained silent. After a brief interruption, the testimony continued as follows (emphasis added): State of Maryland: You stated that [Petitioner] made a statement in regards to the dead girl. What did you say to the Defendant? Detective Childs: I indicated to him that the girl was either dead when you first saw her, or she was alive and you were involved in her death.

At that point, Mr. Coleman remained very silent. He didn’t say anything. These references to Coleman’s post-Miranda silence persisted throughout Detective Childs’s testimony, occurring approximately 30 times in total. In addition, Detective Childs corn ³²⁸ mented in his testimony on Coleman’s nonverbal behavior during questioning (emphasis added): Detective Childs: After being told that we believed in fact he did in fact find out something or see something when the girls got out of the car, Coleman put his head in his hands and looked at the floor.

After a moment of silence, Coleman looked up and asked for a drink of water at 6:53. Coleman’s counsel did not object to any of this testimony at trial, nor did he file a motion in limine prior to the trial. In addition, Coleman did not testify at his trial. The jury found Coleman guilty of first degree murder as well as conspiracy to commit first degree murder (Coleman I).

The Circuit Court for Baltimore County sentenced Coleman on October 7, 2005, to life without parole for the first degree murder conviction and to life for the conspiracy conviction. The sentences are to be served consecutively. On appeal, the Court of Special Appeals affirmed the convictions and sentences in an unreported opinion. Coleman petitioned this Court for a writ of certiorari, which we denied on January 12, 2007.

Coleman next filed a petition for post-conviction relief in the Circuit Court for Baltimore County on August 27, 2009, alleging ineffective assistance of counsel (Coleman II). He contended that, in addition to failing to cross-examine a State’s witness, his trial counsel failed to object at trial to the numerous references, in Detective Childs’s testimony, to Coleman’s post-Miranda silence. Coleman additionally asked that he be given the opportunity to file a belated Motion for Modification and/or a belated Application for Review of Sentence. The post-conviction hearing was held on May 18, 2010.

Only Coleman and his trial counsel testified at the post-conviction hearing. Coleman’s testimony focused on whether he was adequately advised about his post-sentence rights to file a belated Motion for Modification and/or a belated Application for Review of Sentence. Coleman’s trial counsel, in ³²⁹ addition to answering questions as to whether he advised Coleman as to his post-sentence rights and his decision not to cross-examine the State’s witness, discussed his failure to object to the references to Coleman’s silence. Trial Counsel admitted that he did not file a motion in limine, but stated that he did not remember why he made that decision.

Additionally, he stated that he did not remember why he did not object to the references to Coleman’s silence and that, as he understood the law, a defendant could not invoke his right to remain silent on a question by question basis. Moreover, he testified that his trial strategy was “accessory-after-the-fact,” and that he felt that none of the answers Coleman gave to the Detective “hurt him,” because he never admitted to killing the victim. Finally, he added that he does not like to object as often in a jury trial as he does in a court trial because he does not want the jury to think there is something “going on,” and then form a bad impression of the attorney and client, but that he would “certainly object to something that [he] felt was important.” Neither party contested trial counsel’s testimony. The Circuit Court, in a written opinion, denied Coleman’s Petition for Post Conviction Relief.

The trial judge first determined on the merits that trial counsel’s failure to cross-examine the State’s witness did not rise to the level of ineffective assistance of counsel. With regard to counsel’s failure to object and whether that action can be attributed to ineffective assistance of counsel, the Circuit Court did not address the claim on the merits, determining instead that Coleman had waived that claim by not raising it at trial or on appeal. Finally, the trial judge found that Coleman’s allegation that his counsel was ineffective for failing to file a Modification of Sentence was without merit because Coleman never made that request of his counsel, choosing to appeal instead. Coleman then filed an Application for Leave to Appeal in the Court of Special Appeals, and the application was denied on January 26, 2012.

On February 27, 2012, Coleman filed a motion for reconsideration of the denial of his Application for Leave to Appeal in the Court of Special Appeals, which was ³³⁰ granted. The intermediate appellate court further ordered that their earlier opinion be recalled. On reconsideration, the Court of Special Appeals found that the circuit court incorrectly determined that the ineffective assistance of counsel claim was waived. The court concluded, however, that Coleman’s Application lacked merit because he was not prejudiced by the alleged errors, and then again denied his Application for Leave to Appeal.

Coleman filed a petition for a writ of certiorari with this Court, which we denied on August 21, 2012. After Coleman filed a motion for reconsideration of the denial of his petition, this Court issued a writ of certiorari on November 16, 2012, to review the Circuit Court’s denial of post-conviction relief. I. As a preliminary matter, in Mosley v. State, 378 Md. 548 , 836 A.2d 678 (2003), we noted that “the adversarial process found in a post-conviction proceeding generally is the preferable method in order to evaluate counsel’s performance, as it reveals facts, evidence, and testimony that may be unavailable to an appellate court using only the original trial record.” 378 Md. at 562 , 836 A.2d at 686 (citation omitted). See also Md.Code (2001, 2005 Cum.Supp.), § 7-102 of the Criminal Procedure Article. 4 ³³¹ The standard for an ineffective assistance of counsel claim is found in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), which states that “[t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” 466 U.S. at 686 , 104 S.Ct. at 2064 , 80 L.Ed.2d at 692-93 .

This claim has two components. First, the “defendant must show that counsel’s performance was deficient,” which is proven by showing that “counsel’s representation fell below an objective standard of reasonableness,” and that such action was not pursued as a form of trial strategy. Strickland, 466 U.S. at 687-89 , 104 S.Ct. at 2064-65 , 80 L.Ed.2d at 693-95 ; see also Oken v. State, 343 Md. 256, 283-84 , 681 A.2d 30, 43-44 (1996). 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.” Strickland, 466 U.S. at 687 , 104 S.Ct. at 2064 , 80 L.Ed.2d at 693 . This Court has noted that the standard to be used is whether there is a “substantial or significant possibility that the verdict of the trier of fact would have been affected.” Bowers v. State, 320 Md. 416, 426 , 578 A.2d 734, 739 (1990) (quoting Yorke v. State, 315 Md. 578, 588 , 556 A.2d 230, 235 (1989)); see also Williams v. State, 326 Md. 367, 375 , 605 A.2d 103, 107 (1992). As noted in Strickland , “both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact.” 466 U.S. at 698 , 104 S.Ct. at 2070 , 80 L.Ed.2d at 700 . Thus, in our independent examination of the case, we “re-weigh the facts as accepted in order to determine the ultimate mixed question of law and fact, namely, was there a violation of a constitutional right as claimed.” Harris v. State, 303 Md. 685, 698 , 496 A.2d 1074, 1080 (1985).

II

Coleman’s main argument is that he received ineffective assistance of counsel when his trial counsel failed to object to ³³² multiple instances during trial where the State brought into evidence that Coleman had remained silent in the face of police questioning after Coleman had been given Miranda warnings. Coleman contends that the references to his post- Miranda custodial silences found in Detective Childs’s testimony were inadmissible and violated Coleman’s Fifth Amendment rights. He also maintains that his trial counsel’s failure to object to these silences was a serious error and constituted deficient performance by his attorney. See Strickland, 466 U.S. at 687-91 , 104 S.Ct. at 2064-66 , 80 L.Ed.2d at 693-96 (discussing the standard for effective attorney performance).

Finally, Coleman argues that there is a substantial possibility that his trial counsel’s error prejudiced Coleman in the eyes of the jury, due to the inherently prejudicial nature of the error, the fact that Coleman’s credibility was essential to the defense, and because “the State’s case against Mr. Coleman was otherwise non-existent.” Coleman maintains that his convictions should therefore be reversed and that he is entitled to a new trial. The State, in response, argues that Coleman has not satisfied his burden to prove that he was substantially prejudiced by his trial attorney’s alleged error and that, if he has satisfied this burden, the issue should be remanded to the post-conviction court for further deliberation of Coleman’s claim that his counsel’s performance was deficient. The State maintains that, on the basis of the record as a whole, there is no “substantial possibility” that the jury’s verdict would have been different had it not heard that Coleman was silent on several occasions or did not answer Detective Childs’s questions, because Coleman’s statements to the police, the testimony of other witnesses, and other evidence presented at trial preclude him from meeting his burden to show prejudice. The State also argues that it did not specifically use Coleman’s silence against him as evidence of his consciousness of guilt.

As this case assesses whether a criminal defendant’s Sixth Amendment right to effective assistance of counsel was violated when counsel failed to object to defendant’s Fifth Amend ³³³ ment right to remain silent, we begin by reviewing the applicable constitutional law. The Fifth Amendment, as applied to the states by the Fourteenth Amendment, guarantees an accused the right to invoke his privilege against self-incrimination. U.S. Const, amend. V, XIV.

In Michigan v. Tucker, 417 U.S. 433 , 94 S.Ct. 2357 , 41 L.Ed.2d 182 (1974), the United States Supreme Court explained that the procedural safeguards outlined in Miranda v. Arizona, 384 U.S. 436, 444-45 , 86 S.Ct. 1602, 1612 , 16 L.Ed.2d 694, 706-07 (1966), commonly referred to as the Miranda warnings, “provide practical reinforcement for the right against compulsory self-incrimination.” Tucker, 417 U.S. at 444 , 94 S.Ct. at 2364 , 41 L.Ed.2d at 193 . This Court noted in Crosby v. State, 366 Md. 518 , 784 A.2d 1102 (2001): The protections bestowed upon citizens by the privilege against self-incrimination do not disappear once the accused initially waives his or her rights. An accused may invoke his or her rights at any time during questioning, or simply refuse to answer any question asked, and this silence cannot be used against him or her. 366 Md. at 529 , 784 A.2d at 1108 (citation omitted). This dovetails with the Supreme Court’s statement that although “the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings.” Doyle v. Ohio, 426 U.S. 610, 618 , 96 S.Ct. 2240, 2245 , 49 L.Ed.2d 91, 98 (1976).

Additionally, “[ejvidence of post-arrest silence, after Miranda warnings are given, is inadmissible for any purpose,” due to the fact that “[a]s a constitutional matter, allowing such evidence would be fundamentally unfair and a deprivation of due process.” Grier v. State, 351 Md. 241, 258 , 718 A.2d 211, 219 (1998) (citations and quotations omitted); see also Doyle, 426 U.S. at 618-19 , 96 S.Ct. at 2245 , 49 L.Ed.2d at 98 (holding that post-arrest, post-Miranda silence cannot be used for impeachment purposes); Miranda, 384 U.S. at 468 n. 37, 86 S.Ct. at 1624 n. 37, 16 L.Ed.2d at 720 n. 37 (“[I]t is impermissible to penalize an individual for exercising his Fifth Amend ³³⁴ ment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that [the accused] stood mute or claimed his privilege in the face of accusation.”). 5 The Sixth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, and Article 21 of the Maryland Declaration of Rights guarantee criminal defendants the right to counsel. See Mosley, 378 Md. at 556 , 836 A.2d at 682-83 ; see also U.S. Const, amend. VI, XIV; Md. Const.

Decl. of Rts. art. 21. “The right to counsel is the right to the effective assistance of counsel ... [although counsel] can also deprive a defendant of the right to effective assistance, simply by failing to render adequate legal assistance.” Harris, 303 Md. at 694 , 496 A.2d at 1078 (emphasis added) (citations and quotations omitted). In Strickland , the Supreme Court examined a claim of “actual ineffectiveness” in light of the constitutional requirement’s purpose, to ensure a fair trial. See Harris, 303 Md. at 694 , 496 A.2d at 1078 (citing Strickland, 466 U.S. at 686 , 104 S.Ct. at 2064 , 80 L.Ed.2d at 692 ). As discussed above, the Supreme Court noted that in order to demonstrate that counsel’s assistance was so defective as to require a reversal of a conviction, the defendant must show (1) that counsel’s performance was deficient, and (2) that the deficient performance prejudiced the defendant.

See Strickland, 466 U.S. at 687 , 104 S.Ct. at 2064 , 80 L.Ed.2d at 693 . “Otherwise, ‘it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.’ ” Harris, 303 Md. at 696 , 496 A.2d at 1079 (citing Strickland, 466 U.S. at 687 , 104 S.Ct. at 2064 , 80 L.Ed.2d at 693 ). ³³⁵ We first address the performance prong to assess whether counsel’s performance was deficient. Strickland, 466 U.S. at 687 , 104 S.Ct. at 2064 , 80 L.Ed.2d at 693 . We explained in Mosley v. State 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, 378 Md. at 557-58 , 836 A.2d at 683 (citations and quotations omitted); see also Harris, 303 Md. at 698-99 , 496 A.2d at 1080-81 ; Strickland, 466 U.S. at 687-91 , 104 S.Ct. at 2064-66 , 80 L.Ed.2d at 693-96 . As noted above, the post-conviction court concluded that Coleman’s claim with regard to his trial counsel’s failure to object was waived and therefore without merit. As such, the post-conviction court did not make any finding of error, strategy, or prejudice with respect to trial counsel’s performance.

The State maintains that in this Court, even if we agree that there is a substantial possibility that the jury verdict in the criminal case “would have been different had it not heard evidence of Coleman’s intermittent silence, [his] claim of ineffective assistance must be remanded to the post-conviction court for a factual determination as to whether the absence of an objection might have been reasonable.” We disagree with the State’s premise that it is necessary to remand the case to the post-conviction court for a factual determination. Whether trial counsel’s performance was reasonable or even strategic is “a mixed question[ ] of law and fact.” Strickland, 466 U.S. at 698 , 104 S.Ct. at 2070 , 80 L.Ed.2d at 700 . In ³³⁶ Harris , this Court explained its function as a reviewing court for an ineffective assistance of counsel claim in a post-conviction proceeding. 303 Md. at 697-701 , 496 A.2d at 1080-82 . We explained: When a claim is based upon a violation of a constitutional right it is our obligation to make an independent constitutional appraisal from the entire record.

But this Court is not a finder of facts; we do not judge the credibility of the witnesses nor do we initially weigh the evidence to determine the facts underlying the constitutional claim. It is the function of the trial court to ascertain the circumstances on which the constitutional claim is based. So, in making our independent appraisal, we accept the findings of the trial judge as to what are the underlying facts unless he is clearly in error. We then re-weigh the facts as accepted in order to determine the ultimate mixed question of law and fact, namely, was there a violation of a constitutional right as claimed.

Hams, 303 Md. at 697-98 , 496 A.2d at 1080 (citations and quotations omitted). Here, the post-conviction court did not address the first level facts. Similarly, in Perry v. State, 357 Md. 37 , 741 A.2d 1162 (1999), the post-conviction court “made no finding[s] as to whether the deficiency fell below an objective standard of reasonableness considering prevailing professional norms.” 357 Md. at 79 , 741 A.2d at 1184 . Although the post-conviction court in Perry “found as a fact that counsel’s failure to lodge a timely objection to the wiretap evidence was not a matter of trial strategy or tactics but was instead the product of his failure to realize that Perry had a good basis for suppression-in the court’s words, their ‘ignorance of the law[,]’ ” the basis for that finding of fact was trial counsel’s uncontroverted admission that he failed to timely pursue the suppression of certain exhibits and testimony relating to them.

Id. The post-conviction court ultimately decided the ineffective assistance of counsel case based on the “prejudice” issue, concluding that “even if the [wiretap evidence] had been suppressed, there is not a reasonable