Gilliam v. State

CHASANOW, Judge. Following a court trial in the Circuit Court for Baltimore County (Fader, J.), Tyrone D. Gilliam was found guilty of first degree murder of Christine Doerfler, robbery with a dangerous and deadly weapon, kidnapping, and related weapons offenses. The State notified Gilliam of its intent to seek the death penalty, and Gilliam elected to be sentenced by the court. Almost five months after the trial, a sentencing hearing was held before Judge Fader, and, as a result of that hearing, Gilliam was sentenced to death for the murder of Ms. Doerfler.

On direct appeal, this Court affirmed the conviction and sentence. Gilliam v. State, 320 Md. 637 , 579 A.2d 744 (1990), cert. denied, 498 U.S. 1110 , 111 S.Ct. 1024 , 112 L.Ed.2d 1106 (1991). Gilliam filed a petition for post conviction relief, and a ⁶⁶⁰ hearing was held on that petition. The circuit court, Turnbull, J., issued an opinion and order denying post conviction relief.

This Court granted Gilliam’s application for leave to appeal from the denial of post conviction relief. The facts that led to Gilliam’s conviction and sentence were set out in Gilliam’s first appeal. “During the early morning hours of Saturday, December 3, 1988, the body of Christine Doerfler (Ms. Doerfler) was found slumped over the wheel of her Nissan Sentra automobile. She had been shot in the back of the head with a sawed-off shotgun. The following facts were adduced at the trial of Appellant, Tyrone D. Gilliam, Jr. (Gilliam).

On Thursday afternoon, December 1, Gilliam and the Drummond brothers, Kelvin LeGrant Drummond (Kelvin) and Delano Anthony Drummond (Tony), sat in a friend’s apartment and got high on cocaine, marijuana, and alcohol. With them they had a sawed-off Winchester pump shotgun. The three men talked about “what was going to happen, since [they] had the shotgun, and that is when Tony and Tyrone [Gilliam] came up with the idea of going to Harford County.’ They discussed their plans for ‘Friday and like fantasiz[ed] like what [they were] going to do. Tyrone [Gilliam] said that he was going to kill a bitch.’ The next day, the threesome drove to Harford County in a Nova they had stolen earlier in the week.

Each was wearing a stolen snowsuit and gloves taken from a sporting goods store Kelvin had recently burglarized. Gilliam carried the sawed-off shotgun inside his snowsuit. After reaching Harford County at about 2:00 p.m., the three men visited a friend’s apartment and ‘smoked some greens.’ At about 6:00 p.m. they left the apartment, and with Kelvin behind the wheel, they drove the Nova to Baltimore County. There they stopped at the entrance of a townhouse development ‘[b]eeause [they were] planning on robbing somebody.’ Kelvin put on the hazard lights of the Nova, feigning trouble, and they waited for a victim. ⁶⁶¹ Still waiting at the entrance of the townhouse complex, the three men watched as a ear approached.

This first car was driven by a man. Gilliam and Tony told Kelvin not to follow the car. At about 7:45 p.m., Ms. Doerfler pulled her Nissan Sentra into the parking lot of her sister’s townhouse complex. The men had their victim.

As Ms. Doerfler pulled into a parking spot, Kelvin pulled the Nova in back of her Sentra. Ms. Doerfler was getting out of her car, but had not yet shut her door, when Tyrone and Tony jumped out of the Nova. They pushed their way into her car and forced her to drive down Belair Road while Kelvin followed in the Nova. Because he was not certain of any plan, Kelvin signaled the lead car to join him in the rear lot of a Channel store.

Both cars stopped and Tony got out of Ms. Doerfler’s car to tell Kelvin that ‘she didn’t have no money’ but that she had a Signet bank card. Tony rejoined Gilliam and Ms. Doerfler in the lead car and the two cars continued to drive in tandem to find a Signet Bank. Eventually, they turned into Town and Country at the end of Gum Spring Road in Baltimore County. The cars stopped, and Kelvin pulled the Nova beside Ms. Doerfler’s Sentra.

Tony Drummond then got out of the Sentra and took Ms. Doerfler’s car keys -with him. He joined his brother Kelvin in the Nova, leaving Ms. Doerfler alone with Gilliam. The two brothers sat in the Nova talking and waited for Gilliam to join them. Kelvin testified that it was at this point that he looked up and saw Gilliam standing outside Ms. Doerfler’s car on the driver’s side.

Ms. Doerfler was still sitting in the driver’s seat. Kelvin could see Gilliam standing with one arm on the hood of Ms. Doerfler’s car, leaning down talking to her. In his other hand he held the shotgun, grasping it in the center on the pump area, his arm fully extended down. Kelvin then turned to his brother Tony for a cigarette.

He testified: ‘That is when I lit my cigarette up. That is when I heard this loud bang. You could see the flash. When I turned ⁶⁶² around, I couldn’t see the girl.

I could just see her hair and the coat. She was like face first into the steering wheel.’ Gilliam quickly rejoined the brothers in the Nova and the three drove off, leaving Ms. Doerfler at the dead-end of Gum Spring Road. Kelvin asked Gilliam why he did it and Gilliam answered, ‘because she saw [my] face.’ They had stolen three dollars. A few days later on December 5, 1988, at about 3:15 a.m., Trooper Gary D. Kulick of the Maryland State Police was on patrol in Harford County when he received a broadcast over his radio that an ‘incident’ had occurred near his patrol.

He was told to look out for two cars driving on Route 40. Minutes later, Trooper Kulick spotted the cars— a gold, four-door, Toyota Camry followed by a Dodge Colt. The vehicles drove in tandem at a distance of about two to three car lengths and traveled at a speed of 50 m.p.h. in a posted 55 m.p.h. zone. Trooper Kulick positioned his cruiser so that the approaching cars would not see him.

He then received another broadcast which gave the license tag number of the Colt. He radioed the police barrack that he had spotted the cars and asked for back-up. Deputy Buchannan of the Harford County Sheriffs Department came to his assistance. The Deputy signaled the Toyota Camry to pull off the road, which it did, and Kelvin Drummond was arrested.

The Toyota, however, which Trooper Kulick attempted to stop, sped away. A high-speed pursuit ensued, reaching speeds of over 100 m.p.h. The chase ended only when the Toyota, unable to pass a pick-up truck, spun around and hit the median retainer wall head-on. The driver, bleeding from the forehead, was Gilliam.

Gilliam was arrested and his car searched. The search netted a loaded, sawed-off shotgun lodged between the front door and the driver’s seat of the car. The shotgun had three shells in it. ⁶⁶³ At about 3:50 a.m., Trooper Kulick left the accident scene with Gilliam and took him to the Fallston General Hospital emergency room. Gilliam received treatment and was visited by his mother.

He was released from the hospital at 6:10 a.m. Gilliam was taken to the Maryland State Police Barracks in Bel Air, Maryland, where he was directed to a holding cell. More than 12 hours after his arrest, at approximately 4:45 p.m., Gilliam was removed from his holding cell and walked 30 to 40 feet into an interview room where he was questioned by Corporal Ryan and Detective Naylor of the Baltimore County Police Department. Although Gilliam at first denied committing the murder, he ultimately confessed after being confronted with statements Kelvin Drummond had made to police.

Gilliam made both oral and tape recorded confessions. Gilliam was then charged with murder, robbery with a deadly weapon, kidnapping, and use of a handgun in the commission of a crime of violence. Pursuant to Maryland Code (1957, 1987 Repl.Vol., 1989 Cum.Supp.), Article 27, § 412(b), the State timely notified Gilliam that if a conviction of first-degree murder was returned, it would seek the death penalty. Kelvin Drummond was also indicted and pleaded guilty to first degree murder of Christine Doerfler.

However, Kelvin Drummond made an agreement with the State that, if he testified for the State at Gilliam’s trial, the State would recommend that Kelvin receive a sentence no more severe than life with the possibility of parole. The Circuit Court for Baltimore County held a hearing on June 5, 1989, to consider Gilliam’s motion to suppress his statements to police. The motion was denied. Presiding without a jury, the Circuit Court for Baltimore County (Fader, J.) conducted a trial on the merits on June 5-7, 1989.

The State’s case against Gilliam consisted of three elements: The testimony of Kelvin Drummond; Gilliam’s high-speed flight from police in a car containing a sawed-off shotgun; and Gilliam’s statements made to police after he ⁶⁶⁴ was brought into the police barracks. [The defense evidence consisted of four character witnesses, at least one of whom opined that, based on Gilliam’s good character, the shooting must have been accidental.] The trial court found Gilliam guilty of murder in the first degree (on theories of both premeditated murder and felony murder), guilty of robbery with a deadly weapon, guilty of kidnapping, and guilty of use of a handgun in the commission of a crime of violence. The trial judge conducted a hearing on June 23, 1989 to determine whether Gilliam elected to be sentenced by the court or by a jury. Gilliam elected to be sentenced by the court. On October 30-31, 1989, Judge Fader, sitting without a jury, found that Gilliam was a principal in the first degree of the murder of Christine Doerfler and, as an aggravating factor, found that the murder was committed during the course of a kidnapping, Md.Code (1957,1987 RepLVol.), Art. 27, § 413(d)(4), and robbery, Art. 27, § 413(d)(10).

The court found no mitigating factors. Gilliam was sentenced to death.” (Footnotes omitted). Gilliam, 320 Md. at 642-45 , 579 A.2d at 746-48 . Additional facts will be set forth in our discussion of the issues raised by Gilliam in this appeal.

I. Was Gilliam denied his Sixth Amendment Right to Effective Assistance of Counsel Throughout pretrial motions, trial, and sentencing, Gilliam was represented by Donald Daneman, a privately retained counsel. Following his sentencing and appeal and after a meticulous scrutiny of Daneman’s representation, Gilliam, now represented by the Office of the Public Defender, filed a petition for post conviction relief under Maryland Code (1957, 1992 RepLVol.), Article 27, § 645A. In his petition for post conviction relief and subsequent appeal of its denial, Gilliam fires a salvo of accusations of ineffective assistance of counsel. A few of them are patently frivolous.

One example is the complaint that “Daneman neglected to consult with an expert ⁶⁶⁵ on sleep deprivation” prior to the hearing on the motion to suppress Gilliam’s confession. Consultation with an expert on sleep deprivation seems unnecessary, to say the least, since (1) Gilliam never claimed that he was suffering from sleep deprivation, and (2) Gilliam was alone in a cell for approximately ten hours prior to his tape recorded confession and had ample opportunity to sleep prior to his confession had he been tired. In his brief, Gilliam alleges the following: “Specifically, counsel’s performance was deficient in the following ways: A) Failing to develop and present mitigation evidence; B) Failure to investigate; C) Failure to prepare witnesses; D) Failure to prepare for sentencing; E) Failure to prepare for trial; F) Failure to advise and make recommendation as to judge or jury trial and sentencing; G) Failure to advise of the advantages of a jury sentencing under Mills v. Maryland [ 486 U.S. 367 , 108 S.Ct. 1860 , 100 L.Ed.2d 348 (1988) ]; H) Failure to advise of the defense of not criminally responsible; I) Failure to prepare for the hearing on Petitioner’s motion to suppress; J) Failure, at trial, to argue the voluntariness of Petitioner’s statement.” (Footnote omitted). We shall deal with the material aspects of these general allegations and will attempt to do so in what we hope is a more logical order than they are presented in Gilliam’s brief.

In reviewing Daneman’s representation of Gilliam, we must keep in mind that Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), requires that defense counsel’s representation meet “an objective standard of reasonableness.” Id. at 688 , 104 S.Ct. at 2064 , 80 L.Ed.2d at 693 . “The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Id. at 689 , 104 S.Ct. at 2065 , 80 L.Ed.2d at 694 . The Sixth Amendment does not require the best possible defense or that every attorney render a perfect defense. In order to be deficient, counsel’s acts or omissions must be “outside the wide range of professionally competent assistance.” Id. at 690 , 104 S.Ct. at 2066 , 80 L.Ed.2d at 695 . “ ‘[A] court must ⁶⁶⁶ indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” ’ ” State v. Thomas, 325 Md. 160, 171 , 599 A.2d 1171, 1176 (1992) (quoting Strickland, 466 U.S. at 689 , 104 S.Ct. at 2065 , 80 L.Ed.2d at 694-95 ) (citation omitted). The courts should not, aided by hindsight, second guess counsel’s decisions.

A. The Suppression Hearing The primary allegations of ineffective assistance of counsel at the hearing to suppress Gilliam’s confession are that (1) Daneman failed to adequately prepare for the hearing; and (2) Daneman failed to prepare Gilliam for his testimony at the hearing. The facts adduced at the suppression hearing are rather simple and straightforward. Gilliam was arrested in the early morning hours of December 5, 1988, two days after the murder, following a high-speed chase which ended when Gilliam’s car collided with a median wall. The police took Gilliam to a local hospital, where he was treated and released to police custody.

Prior to being interrogated, he was detained in a holding cell for over ten hours. When his interrogation began over twelve hours after his arrest, Gilliam was asked to read the Miranda warnings 1 aloud, and did so. Gilliam also initialed and signed a Miranda rights waiver. The interrogation officers testified that Gilliam was coherent, responsive, and did not appear to be suffering from the effects of drugs.

Gilliam testified at the suppression hearing that the only effect his drug use had on him at the time of his confession was that it made him “paranoid” and “uncomfortable.” When asked if he understood his Miranda warnings when he signed ⁶⁶⁷ the waiver form he replied, “in a way I understood and in a way I didn’t.” 1. Failure to Prepare for the Hearing Gilliam’s complaints can be summed up by the statement in his brief that “Daneman failed to develop any evidence relating to Petitioner’s drug use or head injury or sleep deprivation as they impacted upon the voluntariness of his statement.” Gilliam contends that Daneman failed to obtain information from Trooper Wilson, who was on the scene of Gilliam’s automobile accident immediately prior to his arrest and whose accident report characterized Gilliam’s head injury as incapacitating, rather than one of the other two types of injury listed on the form, i.e., non-incapacitating or fatal. In light of the assessment of Gilliam’s condition at the hospital, we fail to see how Trooper Wilson’s assessment of Gilliam’s condition would have any probative value. Additionally, Gilliam contends Daneman failed to obtain information from Gilliam’s mother and two other witnesses, who could corroborate his physical condition and drug use prior to his arrest.

Gilliam ignores or minimizes, however, the following facts. Daneman did consult with Dr. Ramamurthy, a specialist in internal medicine, who upon reviewing the hospital reports detailing Gilliam’s medical treatment after his arrest, concluded that it would be difficult to present expert testimony on mental impairment at the time of the confession. The hospital report indicated Gilliam never lost consciousness after the accident and that he was alert and understood what was happening. Gilliam had advised Daneman before the suppression hearing that he “knew what [he] was saying,” that “he was not intoxicated” when he confessed, and that he confessed after he was told Kelvin Drummond confessed because he “had the presence of mind to try and establish a defense of accidental shooting.” Further, Gilliam did not give his statement to the police until over twelve hours after his arrest and after he had been left alone in a cell for approximately ten hours prior to his interrogation, thus militating against any claim of intoxication or sleep deprivation. ⁶⁶⁸ In response to Gilliam’s prior contentions about his confession, we have previously stated: “But even if Gilliam had argued that his waiver was involuntarily given due to prior drug use, we would point out here, as we have in a pre-Miranda decision, that as long as a statement is freely and voluntarily given at a time when the accused understands what he is saying, the fact that the accused may be under the influence of narcotics does not necessarily make the statement inadmissible.

Bryant v. State, 229 Md. 531, 536 , 185 A.2d 190, 192-93 (1962). The same would be true for any effects caused by the laceration on his forehead. See Hadder v. State, 238 Md. 341, 357 , 209 A.2d 70, 79 (1965) (physical injury does not affect admissibility as long as the disclosure is freely and voluntarily made at a time when the accused knows and understands what he is saying).” Gilliam, 320 Md. at 650 , 579 A.2d at 750 . Faced with the evidence of the voluntariness of Gilliam’s tape recorded confession as well as with Gilliam’s tacit acknowledgment of its voluntariness, Daneman did as much as could reasonably be expected.

Gilliam has failed to prove Daneman rendered ineffective assistance in his preparation for or representation during the suppression hearing. 2. Preparation of Witnesses Gilliam makes another allegation that relates to the suppression hearing, but also impacts on other aspects of Daneman’s preparation. He states: “Perhaps the most telling deficiency in Daneman’s performance with respect to the suppression hearing was his complete failure to prepare Petitioner for his testimony.” Gilliam expands this allegation to include the trial and sentencing phase and complains that “starting with the suppression hearing and continuing through sentencing, Daneman’s complete failure to prepare witnesses severely impaired Petitioner’s defense.” Daneman testified that he did have extensive conversations with Gilliam about the suppression issues. Consistent ⁶⁶⁹ with the general rule disfavoring unduly influencing witnesses, Daneman indicated that he had adopted a practice of not reviewing specific questions and answers with clients or witnesses.

He did, however, adhere to a policy of reviewing the general subject of each witness’s testimony. This is all that is required of an attorney. See State v. Earp, 319 Md. 156, 170-72 , 571 A.2d 1227, 1234-35 (1990) (describing the cloudy line between permissible witness preparation and improper influence of a witness’s testimony and cautioning attorneys to “exercise great care to avoid suggesting to the witness what his or her testimony shall be.”). Gilliam’s general complaint of failure to prepare witnesses is without merit.

We shall deal with one, more specific, part of this allegation in part I.C.6, infra. B. Trial Errors 1. Failure to Advise and Make Recommendations as to Judge or Jury Trial and Sentencing Gilliam contends that Daneman was deficient in not making a recommendation as to whether he should opt for a court or jury trial and sentencing. At the post conviction hearing, Gilliam called William C. Brennan, Jr., who was qualified as an expert in handling death penalty cases.

Mr. Brennan opined that an attorney “has a duty to make a recommendation” as to court or jury trial and sentencing. Mr. Brennan, however, also testified that it would be impossible for him to say what advice Daneman should have given or even if one mode was preferable over the other in the instant case. Daneman testified that he advised Gilliam at length and on several occasions regarding the decision to elect court or jury trial and sentencing. Daneman further testified that his practice is to tell the client that the ultimate decision must be made by the client.

Daneman did not attempt to influence Gilliam’s decision by making any recommendation of his own, although Gilliam’s mother, Mary Gilliam, apparently recommended to Gilliam that he elect a court trial and court sentencing because she believed Judge Fader was a “religious ⁶⁷⁰ person” and would be the fairest possible trier of fact. Gilliam also expressed fear about how a jury would view his crime and ultimately elected a court trial and court sentencing. Election of court or jury trial and/or sentencing is a decision for the defendant. See Maryland Rule 4-246; Bruce v. State, 328 Md. 594, 602-608 , 616 A.2d 392, 396-99 (1992), cert. denied, — U.S. -, 113 S.Ct. 2936 , 124 L.Ed.2d 686 (1993).

There was no indication that, in the instant case, one would have been preferable over the other and no reason why Daneman should have attempted to influence Gilliam’s decision by making a recommendation. We therefore find no ineffective assistance in Daneman’s failure to make a recommendation in the instant case as to whether Gilliam should elect to have his trial and his sentencing before a court or jury. 2. Failure to Prepare for Trial Gilliam argues that Daneman was deficient in arguing only an accident defense at trial, and not exploring alternative defenses. Although Gilliam initially told Daneman that he shot Ms. Doerfler accidentally, during a subsequent interview prior to trial, however, Gilliam changed his story and told Daneman “it was not an accident, I killed her because she could have identified [Tony].

She saw his face.” 2 At the guilt/innocence trial, Daneman relied on the defense of accident which was consistent with Gilliam’s confession to the police. There was never any suggestion that the accident defense was either inappropriate or inadequately presented. Indeed, Gilliam’s expert on criminal defense representation, William C. Brennan, Jr., acknowledged that “Mr. Daneman did a pretty good job on the accident defense at trial.” Gilliam does not now challenge the accident defense, but claims in his brief that Daneman “failed to make any attempt to develop an alternative defense.... Petitioner’s initial ⁶⁷¹ claim that the shooting was an accident did not relieve Dane-man of his responsibility to investigate and develop all defenses that may be available under the facts and the law.” Gilliam shot Ms. Doerfler in the back of the head with a shotgun after robbing and kidnapping her.

He did so in the presence of two witnesses who were in another car some distance away, and he confessed to the police, albeit claiming the gun went off accidently. Daneman was clearly not ineffective because he failed to “investigate and develop an alternative defense.” See Lindsey v. Smith, 820 F.2d 1137, 1152 (11th Cir.1987) (a defendant “who proposes an alternative trial strategy that would itself have proved futile has failed to demonstrate that the [attorney’s] representation at trial fell below an objective standard of reasonableness.”), cert. denied, 489 U.S. 1059 , 109 S.Ct. 1327 , 103 L.Ed.2d 595 (1989); Jones v. United States, 512 A.2d 253, 262-63 (D.C.1986) (“Assuming ... that [an alternative] defense would be a valid defense as a matter of law, counsel’s failure to pursue it appears to have been a tactical judgment” and did not constitute ineffective assistance of counsel when such judgment was reasonable). Daneman obviously chose to pursue the best and probably the only legitimate trial defense. The claim that Daneman should have “developed” an alternative trial defense is at best frivolous. 3.

Failure to Pursue the Defense of Not Criminally Responsible Among potential alternative defenses, Gilliam specifically asserts that Daneman should have pursued the defense of not criminally responsible. Daneman’s reasons for not pursuing this defense, however, were based, in part, on his discussions with his client. Daneman testified at the post conviction hearing that he and Gilliam “discussed whether he understood what he was doing, could he appreciate what he was doing, and you have to understand that my client told me that what he had done, ... it was a cold blooded murder.” At the pretrial motions hearing, Daneman recited for the record, in Gilliam’s presence, that he and Gilliam had jointly decided ⁶⁷² not to file a plea of not criminally responsible. As we noted in Gilliam’s first appeal: “The record establishes that defense counsel discussed the plea option with his client and that Gilliam was included in the decision to forgo a plea of ‘not criminally responsible.’ ” Gilliam, 320 Md. at 665 , 579 A.2d at 757 .

Even had Gilliam not concurred in the decision, no expert witness has ever opined that Gilliam was, by virtue of a mental disorder, not criminally responsible at the time of the murder. Dr. Ellen McDaniel and Dr. David Shapiro testified to their opinions that Gilliam met the mitigating factor under Maryland Code (1957, 1992 Repl.Vol.), Article 27, § 413(g)(4) that by virtue of a mental disorder Gilliam was “substantially impaired” in his ability to conform his conduct to the requirements of law. Neither expert opined, however, that Gilliam met the statute’s test for a finding of not criminally responsible under Md.Code (1982, 1990 Repl.Vol.), Health-General Article, § 12-108, which requires, in relevant part, that at the time of the offense, by virtue of a mental disorder, he “lacks substantial capacity” to conform his conduct to the requirements of law. There is a difference between lacking substantial capacity and having substantially impaired capacity.

The post conviction judge made the following findings of fact: “There is no doubt in this Court’s mind that the Defendant did not meet the standards of Not Criminally Responsible. The Defendant’s confession, Counsel’s interviews with the Defendant, a report from Dr. Rubin, discussions with the Defendant’s family and lastly the letter from the Defendant himself [admitting he had ‘cold bloodedly killed someone’] all support this finding of fact.” Based upon the evidence in the record, we conclude that these findings are not clearly erroneous. 4. Failure to Argue Involuntariness of Gilliam’s Confession at Trial Gilliam also claims Daneman’s representation was deficient because, after the denial of the motion to suppress Gilliam’s confession, Daneman did not raise the issue of volun ⁶⁷³ tariness again at trial. Even if this was an oversight on Daneman’s part, it in no way prejudiced Gilliam’s defense.

Judge Fader was the trier of fact both at the suppression hearing and at trial. Judge Fader can be presumed to know the law and to know, even without Daneman reminding him, that a confession cannot be considered by the trier of fact unless it is found to be voluntary beyond a reasonable doubt. See Brittingham v. State, 306 Md. 654, 665 , 511 A.2d 45, 49-50 (1986). As Strickland points out: “The assessment of prejudice should proceed on the assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision.” 466 U.S. at 695 , 104 S.Ct. at 2068 , 80 L.Ed.2d at 698 .

We should assume that Judge Fader did not need to be reminded that he could not consider Gilliam’s confession unless he found that confession voluntary beyond a reasonable doubt. Thus, Daneman’s failure to argue this issue in no way prejudiced Gilliam’s defense. We might also note that, in light of the facts, there was little Daneman could argue to Judge Fader in challenging the voluntariness of Gilliam’s confession. C. Sentencing Hearing Errors Gilliam alleges a number of instances of ineffective assistance by Daneman at the sentencing hearing. 1.

Failure to Present Mitigating Factors Gilliam first suggests that Daneman failed to effectively pursue, at the sentencing hearing, mitigating factors of duress and substantial mental impairment. We note that prior to the death penalty sentencing hearing, Daneman asked Gilliam to put his thoughts about the crime in writing. Gilliam wrote a letter to Daneman which stated in part as follows: “I’m not sure about how I should start this letter. Even though this letter will not be taken to court with me, I still feel as though I might say the wrong thing.

I’m not the young man that I appear to be by my past actions. I am looking at my case from both sides, so please; don’t think that I’m crazy. I have reasons why I think that I should be ⁶⁷⁴ given the death penalty, and reasons why I shouldn’t be given the death penalty. I’ve cold bloodedly killed someone.

I had no reason for it, and it’s hard for me to deal with the fact that it’s all over. It’s even hard for me to "write down the reasons why I think I should live. I don’t want to die, even though it sounds that way; but I do deserve every bit of death. I’ve caused a lot of hurt, just by pulling a trigger one time.

And it doesn’t feel good. I will never forget what I have done.” (Emphasis added). In this letter, Gilliam acknowledges his cold blooded killing and in no way suggests the mitigating factors of duress or substantial mental impairment which he now claims Daneman should have more effectively pursued at the sentencing hearing. Nonetheless, Daneman’s sentencing hearing preparation included a review of each of the statutory mitigating factors, as well as potential non-statutory mitigating factors.

Ultimately, Daneman in fact decided to pursue both duress and substantial mental impairment. The mitigating factor of duress was generated by a statement Gilliam made to the defense psychologist, David Shapiro, Ph.D., that Gilliam shot Ms. Doerfler because he was afraid of what Tony would do to him if he didn’t kill her. Daneman argued duress as a mitigating factor in spite of circumstances refuting that defense, including (1) in his tape recorded confession, Gilliam asserted accident, not duress; (2) the day before the murder, Gilliam stated to the Drummond brothers that he wanted to “kill a bitch”; (3) Gilliam never alleged to anyone that Tony directly ordered him to kill Doerfler; and (4) it is difficult to infer that Gilliam, armed with a sawed-off shotgun, was acting out of fear of an unarmed friend who was sitting in a car some distance away. As for the defense of substantial mental impairment, Dane-man also presented evidence at the sentencing hearing of the mitigating factor that Gilliam committed the murder while his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substan ⁶⁷⁵ tially impaired as a result of mental disorder and drugs.

Md.Code (1957, 1992 Repl.Vol.), Art. 27, § 413(g)(8). Dr. Shapiro testified that there was a “substantial impairment” of Gilliam’s ability to conform his conduct to law “based on the combination of unstable personality disorder and the ingestion of drugs.” There was no other available evidence that Gilliam was substantially impaired because the two psychiatrists retained to examine Gilliam, Dr. Neil Blumberg and Dr. Ellen McDaniel, told Daneman prior to the sentencing hearing that they could not express an opinion as to the existence of such substantial impairment, and they were not called as witnesses. Dr. Blumberg explained to Daneman before the sentencing hearing that Gilliam’s acknowledgment of complete awareness of his act of murder precluded any conclusion that Gilliam’s ingestion of drugs was a significant factor in the killing. Dr. Blumberg told Daneman: “The Defendant did consider some alternatives because he stood outside of the car with a gun for one and one-half minutes thinking of what to do before he shot the young girl.” Dr. Blumberg also advised Daneman that “this case is a cold blooded execution.

Intoxication played a part, but unfortunately he was not under duress or intimidated,” and “he can’t mitigate on the grounds of substantial impairment.” Thus, in spite of Gilliam’s claim to the contrary, Daneman did present evidence on the mitigating factors of duress and substantial mental impairment and pursued those factors to the extent possible. 2. Daneman’s Lack of Death Penalty Litigation Experience and Failure to have Co-Counsel Gilliam’s claim seems to be that Daneman had insufficient death penalty litigation experience, although he acknowledges that Daneman was an experienced defense counsel. In his brief, Gilliam alleges: “Daneman, sole counsel at trial and sentencing, and inexperienced in death penalty litigation, failed to conduct legal research on the issue of mitigation, stating that his legal ⁶⁷⁶ research was ‘in his brain.’ Daneman did not begin to contemplate the sentencing phase of Petitioner’s trial until after the guilty verdict.” (Footnotes omitted). Daneman has been a member of the bar since 1961 and engaged in the practice of criminal law since his admission to the bar.

He has been involved in “thousands” of cases and lectured for the Department of Justice. Daneman had represented a previous client in a murder case where the death penalty notice was sent by the State. The post conviction hearing judge found that “[b]ased upon all of the evidence and testimony this Court finds as a fact that defense counsel was experienced and more than competent to handle a capital case.” This finding is well supported in the record. Gilliam’s expert witness opined that representing a defendant in a capital murder without a “second chair” was inadequate representation as a matter of law.

We disagree and further note that Daneman had more than adequate assistance. Daneman received assistance from a law clerk as well as from an associate in his law firm. Daneman also received substantial assistance from the Capital Defense Division of the Office of the Public Defender. This assistance included advice from other attorneys, assistance in retaining at least three experts, and a psychological family background assessment.

All that Strickland requires is that a criminal defendant receives competent representation, falling within a professional standard of reasonableness. We find that Gilliam received such representation. Gilliam cites no