Evans v. State

SONNER, J. Appellant, Dwight Evans, appeals the denial of post-conviction relief by the Circuit Court for Baltimore City. In 1995, a jury convicted Evans of distribution of cocaine and possession with intent to distribute cocaine. Thereafter, the court sentenced Evans to consecutive sentences of fourteen years for distribution of cocaine and five years for possession with intent to distribute. Evans appealed his convictions to this Court, where a divided panel reversed the convictions.

The State appealed our decision to the Court of Appeals, which reversed us and reinstated the convictions and sentence. Later, the circuit court denied post-conviction relief to Evans, concluding that Evans’s Fourth Amendment challenge had already been litigated, that case law foreclosed review of his due process claim, and that Evans had failed to show ineffective assistance of counsel. Evans presents three issues for our review, which we quote: I. Whether Evans was denied effective assistance of counsel under the Sixth Amendment because his trial counsel failed to move to suppress evidence recovered during the warrantless rectal search of Evans on the grounds that absent emergency circumstances, war-rantless body cavity searches violate the Fourth Amendment and there were no emergency circumstances in this case.

II

Whether Evans was denied effective assistance of counsel under the Sixth Amendment because his trial counsel failed to move to suppress evidence recovered during the warrantless rectal search of Evans on the grounds that this warrantless rectal search violated Evans’s Fourth Amendment rights because it was conducted on a public street, in daylight, and without medical assistance.

III

Whether Evans was denied effective assistance of counsel under the Sixth Amendment because: (1) his ³⁶⁹ trial counsel failed to recognize that he might not succeed in his argument that Evans was not under arrest; (2) trial counsel failed to move to suppress an incriminating statement made by Evans on the ground that the State could not meet its burden of proving the statement was voluntary because Evans was not provided with Miranda warnings; and (3) since the Court of Appeals did find that Evans was under arrest, it is clear Evans was denied due process protections ordinarily incident to arrest, that if raised, should have prevented Evans’ incriminating statement from reaching the jury. We conclude that Evans’s counsel failed to satisfy objective standards of trial conduct, so we reverse the circuit court’s denial of post-conviction relief. Factual Background The Court of Appeals stated the facts giving rise to this case in its 1999 opinion: In June of 1994, Officer Kenneth Rowell was involved with other members of the Baltimore City Police Department Violent Crimes Task Force in an undercover operation known as “Operation Mid-East.” The goal of Operation Mid-East was to identify and combat street-level drug transactions. In accordance with that goal, once the police had probable cause to believe a suspect was engaged in an illegal drug transaction, that suspect was not taken to the police station and processed.

Instead, the police detained the suspect, ascertained the suspect’s identity and address, performed an outstanding warrant check, conducted a search of the suspect’s person, seized any drugs or currency, and, finally, released the suspect. The Baltimore City Police employed this procedure to protect the integrity of the ongoing undercover operation, later conducting a “mass sweep” of arrests of the suspects once the operation had concluded. At 7:45 p.m. on June 9, 1994, Officer Rowell was involved in Operation Mid-East in the vicinity of Monument and ³⁷⁰ Port Streets in Baltimore City. Officer Rowell had been outfitted with a “Kel Set,” or body wire.

Although the record is not clear as to who approached whom, at that time a conversation took place between Officer Rowell and Respondent Dwight. Evans. Rowell testified that he asked Evans if he was working and, if so, what Evans had. According to Officer Rowell, Evans responded that he had “dimes of coke.” Rowell requested a dime.

Officer Rowell then accompanied Evans as the pan-walked east of Monument Street. At that point, Rowell testified that Evans “reached into his rear end, down inside his pants, removed the cocaine, [and] handed me one.” In exchange, Officer Rowell handed Evans a ten dollar bill. The serial number of the currency had previously been photocopied by the police for the purpose of subsequent identification. After this transaction, the pair separated.

Officer Rowell continued along Monument Street toward Milton Avenue. After Officer Rowell assured himself that no one was in the vicinity, he transmitted a description of Evans to a nearby “identification team” composed of task force members. Approximately five to ten minutes later, the team stopped Evans. Officer Rowell, who had entered his automobile and repeated his description of the suspect, drove by the area where Evans had been detained.

Rowell confirmed that the person detained by the identification team was in fact the same individual from whom he had purchased the cocaine. After the confirmation of Evans’s identity as the suspected drug dealer, a member or members of the technical team searched Evans. Because the identification team had difficulty locating any suspected controlled substances, someone again contacted Officer Rowell. Rowell indicated that Evans had taken the cocaine from his “rear area.” Based on this information, the identification team searched Evans again.

The two searches eventually produced $163.00 in United States currency, including the ten dollar bill that Officer Rowell had earlier handed Evans, as well as nine green-topped vials containing cocaine. ³⁷¹ Evans was given a receipt for the seized money and photographed by the technical team. Police procedure pursuant to Operation Mid-East required that a suspect verify his or her identity before being released. Accordingly, the police called Evans’s father, who came to the area and confirmed his son’s identity. At that time, the police did not transport Evans to the police station, nor did they formally charge him, nor did they take Evans before a District Court Commissioner.

Rather, the officers apparently followed an internal procedure whereby one of them completed a document entitled “Investigated and Released.” Evans was then released. State v. Evans, 352 Md. 496, 500-03 , 723 A.2d 423 (1999) (footnotes omitted). Evans appealed his convictions to this Court, asserting that because the police failed to arrest him, they could not search him incident to an arrest. Evans v. State, 113 Md.App. 347 , 688 A.2d 28 (1997).

A divided panel of this Court decided that the police action did not constitute an arrest of Evans and the proceeds of the search conducted incident to that “non-arrest” should have been suppressed. That led to a reversal of the judgments of the circuit court. The State successfully appealed to the Court of Appeals. State v. Evans, 352 Md. 496 , 723 A.2d 423 (1999).

The Court of Appeals concluded that the detention of Evans did constitute an arrest, even though the police filed no formal charges until a later date. The Court also concluded that, because the police arrested Evans, they could also search incident to arrest and any seized evidence was admissible. In effect, the Court of Appeals reversed our decision and reinstated the convictions. Pursuant to Maryland Code (1957, 1996 Repl.Vol.), Article 27, section 645A, then in effect, 1 Evans filed a petition for ³⁷² post-conviction relief in January, 2000.

His amended petition, filed in late October, 2000, presented three claims of error. First, Evans asserted that the police did not arrest him and, consequently, the search incident to arrest exemption did not apply. Second, even if the police arrested Evans, the circumstances surrounding that arrest violated due process. Finally, Evans argued that because his counsel did not reopen the suppression hearing and challenge his rectal search as unreasonable under the Fourth Amendment, counsel did not provide Evans with effective assistance.

The circuit court disagreed, concluding that the Court of Appeals’s decision in this case finally litigated the arrest issue. In response to Evans’s second contention, the court concluded that it would not grant post-conviction relief for a claim of illegal arrest, citing Johnson v. Director of Patuxent Institution, 243 Md. 708, 710 , 222 A.2d 248 (1966) (concluding that Johnson could not prevail on his illegal arrest theory because he had failed to show prejudice). Finally, the court decided that Evans had failed to show that his trial counsel lacked a tactical reason for not objecting to the search based on its alleged unreasonable nature, and so it rejected his claims of ineffective assistance of counsel. This appeal followed.

Discussion I. Strickland v, Washington Article 21 of the Maryland Declaration of Rights and the Sixth Amendment of the U.S. Constitution guarantee all criminal defendants effective assistance of counsel. In Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), the Supreme Court announced the standard to be applied when determining whether counsel’s representation of a defendant satisfied the protections of the Sixth Amendment. See also Perry v. State, 357 Md. 37, 38 , 741 A.2d 1162 (1999); Wiggins v. State, 352 Md. 580, 602 , 724 A.2d 1 (1999), aff'd in part, rev’d in part, 164 F.Supp.2d 538 (D.Md.2001). To satisfy Strickland , a defendant must show, first, that counsel’s conduct was deficient and, most important, that the deficiency prejudiced the defense. 466 U.S. at 687 , 104 S.Ct. 2052 ; ³⁷³ Perry, 357 Md. at 78 , 741 A.2d 1162 .

To prove deficient performance, the defendant must: (1) demonstrate that “counsel’s acts or omissions, given the circumstances, ‘fell below an objective standard of reasonableness considering prevailing professional norms,’ ” and (2) “overcome the presumption that the challenged conduct ‘be considered sound trial strategy.’ ” Wiggins, 352 Md. at 602 , 724 A.2d 1 . To satisfy the prejudice prong, there must be a showing that counsel’s errors were “so serious as to deprive [the defendant] of a fair trial, a trial whose result is reliable.” Oken v. State, 343 Md. 256, 284 , 681 A.2d 30 (1996) (quoting Lockhart v. Fretwell, 506 U.S. 364, 369 , 113 S.Ct. 838 , 122 L.Ed.2d 180 (1993)). Although this standard invites complete review of counsel’s performance, Strickland holds that our review must be restrained. The standard that counsel is held to is “reasonably effective assistance.” Strickland, 466 U.S. at 687 , 104 S.Ct. 2052 .

We must be highly deferential in reviewing counsel’s performance, and because we want to avoid “second-guess[ing] counsel’s assistance,” we “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689 , 104 S.Ct. 2052 . To overcome this strong presumption, a defendant must show that counsel’s conduct was not “sound trial strategy.” Id. Once the defendant cites specific acts or omissions of counsel, the court examines them in “light of all the circumstances” of the case, and determines whether those acts or omissions were “outside the wide range of professionally competent assistance.” Id. at 690 , 104 S.Ct. 2052 . The defendant also bears the burden of proving the prejudice prong.

Strickland, 466 U.S. at 693 , 104 S.Ct. 2052 . “It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.” Id. A defendant must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694 , 104 S.Ct. 2052 . “Reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. See ³⁷⁴ Perry, 357 Md. at 80 , 741 A.2d 1162 (quoting Oken, 343 Md. at 284 , 681 A.2d 30 ). Beyond the directions of Strickland, we are still governed by the general rules of appellate review.

Specifically, determinations by the circuit court regarding effective assistance of counsel claims are mixed questions of law and fact. State v. Gross, 134 Md.App. 528, 559-60 , 760 A.2d 725 (2000), aff'd, 371 Md. 334 , 809 A.2d 627 (2002). “We ‘will not disturb the factual findings of the post-conviction court unless they are clearly erroneous.’ ” State v. Jones, 138 Md.App. 178, 209 , 771 A.2d 407 (quoting Wilson v. State, 363 Md. 333, 348 , 768 A.2d 675 (2001)), cert. granted, 365 Md. 266 , 778 A.2d 382 (2001). We will make our own independent analysis, however, based on our own judgment and application of the law to the facts, of whether the State violated a Sixth Amendment right. Jones, 138 Md.App. at 209 , 771 A.2d 407 (citing Harris v. State, 303 Md. 685, 699 , 496 A.2d 1074 (1985)).

Consequently, absent clear error, we defer to the post-conviction court’s historical findings, but we conduct our own review of the application of the law to the defendant’s claim of ineffective assistance of counsel. See Cirincione v. State, 119 Md.App. 471, 485 , 705 A.2d 96 (1998).

II

The Performance Prong Evans argues the performance prong on two fronts. First, he argues that the search of his “rear area” in an exposed area of a public street obviously violated the reasonableness clause of the Fourth Amendment and that any competent attorney would have argued for suppression of the seized evidence on this ground. Second, because the police arrested Evans, they should have read him his Miranda warnings before he signed the seized money receipt. Again, Evans asserts that a competent attorney would have objected to the introduction of the receipt.

Evans asserts that the police subjected him to a rectal exam on the streets of Baltimore City with two female officers standing guard. Consequently, absent reasoned professional judgment or trial strategy, counsel would have been deficient in failing to object ³⁷⁵ to the alleged rectal examination. See, generally, Perry, 357 Md. at 78-79 , 741 A.2d 1162 . The State counters both assertions.

First, the State takes issue with Evans’s characterization that the search of his “rear area” was a body cavity or rectal search. The State contends that the testimony supports only a conclusion that the drugs were either in Evans’s shorts or between his “butt cheeks.” In either case, the search was reasonable, and the testimony did not present a basis, either at the suppression hearing or at trial, to object to the search. Next, the Attorney General argues that the Miranda argument fails for two reasons. First, Evans did not include this argument in his petition; consequently, we should not consider it.

Second, police neither placed Evans in custody, nor interrogated him and, consequently, the law required no Miranda warnings. Because we find that Evans’s counsel failed to provide him with effective assistance on the search issue, we need not explore the testimonial nature of the receipt and the application of Miranda to his signing it. Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct 1602 , 16 L.Ed.2d 694 (1966). As we noted, the State contends that the search involved nothing more than the police removing vials from Evans’s buttocks area, and, at a minimum, from inside his shorts.

If we were to believe the State’s interpretation of the facts, our review would be governed by Bell v. Wolfish, 441 U.S. 520, 559 , 99 S.Ct. 1861 , 60 L.Ed.2d 447 (1979) (holding that the test of reasonableness under the Fourth Amendment requires the balancing of the need for the particular search against the invasion of personal rights, and factors to consider in that analysis are the scope of the particular intrusion, the manner in which it was conducted, the justification for initiating it, and the place in which it is conducted). Officer Timothy Chester testified that he recovered vials from Evans’s rear and that the area where Evans was searched was “famous for rectal—they hide it a lot in their rectal areas.” In addition, he testified that he asked the female officers at the scene to turn their backs