Gross v. State

RAKER, Judge. Petitioner, Alvin Winslow Gross, filed a Petition for Post-conviction Relief in the Circuit Court for Anne Arundel County. The Circuit Court granted him a new trial, based on Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), and its progeny on the grounds that he was denied effective assistance of trial and appellate counsel. The Court of Special Appeals reversed, reinstating the judgments of conviction.

State v. Gross, 134 Md.App. 528 , 760 A.2d 725 (2000). We granted the petition for writ of certiorari to consider whether petitioner was denied effective assistance of counsel. In the early morning hours of December 19, 1993, the body of a young woman was discovered in a cornfield in Anne Arundel County. The autopsy revealed that her blood alcohol content was .34% and her urine alcohol content was .42%.

When her body was found, she was nude from the waist up, her underwear was wrapped around one leg, and she had on no shoes, blouse, bra, or coat. The cause of death was four gunshot wounds — two to her neck and two to her chest. There was no purse or identification with the body. The victim was identified several days later as Margaret Ruth Courson when a friend recognized her from a photograph that appeared in the local Annapolis newspaper.

The victim had last been seen near the City Dock in Annapolis, at approximately 3:30 a.m., on December 19, 1993. The cornfield where her body was discovered three hours later was approximately twenty miles away from the City Dock area of Annapolis. In response to media releases on December 20, 1993, the police received several telephone calls identifying petitioner, Alvin Winslow Gross, as the murderer. On December 31, ³³⁹ 1993, they received an anonymous telephone call stating that Sidney Scott, Jr. and two other black men were involved in the murder.

On January 6 and 7, 1994, the police spoke with three anonymous informants who implicated petitioner, among others, in the murder. On January 10, 1994, the police executed search warrants for petitioner’s person, car, and residence. During the search of petitioner’s car, police found physical evidence linking the victim to petitioner’s vehicle. They found a notebook containing handwriting matching that of the victim and fingerprints of the victim on nine separate pages.

The police also found two head hairs and one pubic hair in petitioner’s automobile, which were later identified as belonging to the victim. In addition, police gathered carpet fibers from the floor mats in petitioner’s automobile, which were subsequently matched to fibers found on several items of clothing worn by the victim on the night of the murder and found in combings of her pubic hair. On the same day, petitioner was arrested and transported to the police station, where samples of his blood, hair, and saliva were obtained and submitted to the crime laboratory for DNA testing. 1 A vaginal swab was also taken from the victim’s body and examined for possible DNA traces. Initially, the ³⁴⁰ laboratory attempted to perform DNA Restriction Fragment Length Polymorphism (“RFLP”) analysis, but there was not enough genetic material present to obtain results with that method.

The laboratory then performed a DNA Polymerase Chain Reaction (“PCR”) amplification, which can be performed on a smaller DNA sample, followed by an analysis of the DQ Alpha region of the chromosome (“DQA”). See State v. Isley, 262 Kan. 281 , 936 P.2d 275, 279 (1997). Prior to trial, petitioner moved in limine to exclude the DNA/PCR evidence on two grounds: first, that PCR analysis ³⁴¹ was generally not accepted in the scientific community and, therefore, not admissible; and, second, that the test results were inadmissible because the laboratory had not produced population genetics statistics to accompany the lab results and that, absent these statistics, the results of the test were meaningless. At the hearing on the pre-trial motion, the defense called as an expert witness, Dr. Walter Rowe, a professor of forensic sciences.

The trial court admitted Dr. Rowe as an expert to testify about population statistics in a general sense but did not accept him as an expert in the field of DNA or DNA/PCR analysis. The trial court denied petitioner’s motion in limine. The bullets removed from the victim’s body were too mutilated for a ballistics match, but the State’s firearms identification expert testified at trial that they were .32 caliber bullets that could have been fired from one of five probable makes of revolvers, including one manufactured by Rossi. The police later recovered a Rossi revolver that petitioner had turned over to Troy King in early January 1994.

King was a close personal friend of petitioner’s for several years and was not in any way a suspect in the case. Although the ballistics expert could not state that the four bullets had been fired from petitioner’s revolver, he did testify that they were compatible with it. At trial, Troy King testified that, during the last week of December 1993, petitioner had discussed the Courson murder with him, telling him during a telephone conversation that he had been doing “crazy things” lately, that he and Sidney Scott were with the victim on the night of December 19, 1993, and that they both shot and killed her. King testified that petitioner had told him that he and Scott had picked up the victim and that they felt they had to kill her because they were afraid that the victim would identify them.

King also testified that, early in January 1994, he, his cousin Charles Carpenter, and petitioner had gone out to a night club in Washington, D.C. ³⁴² Both King and Carpenter testified that petitioner gave King a .32 caliber Rossi revolver from his car and asked King to keep it for him. Both also testified that, at the time that petitioner gave the revolver to King, he had warned King to be careful with it because “it already has one life on it.” The State also called as a witness Angela Nicolson, King’s fiancee. She testified that she found a handgun in the apartment that she shared with King and that, after petitioner’s arrest, she turned the gun over to police. The State introduced other physical evidence linking the victim to petitioner.

This evidence included hair found in a notebook in petitioner’s car. Both the notebook and hair sample belonged to the victim. Fibers from petitioner’s car mats were found on the victim’s clothing. The State presented evidence that DNA samples were collected from the victim’s body and testing using the PCR DQA method.

Two DNA experts from Cellmark Diagnostic Laboratory, Melissa Weber and Charlotte Word, testified at trial regarding the PCR DQA testing. At trial, the defense moved in limine, before the State’s Cellmark DNA experts testified, to prevent the State from entering evidence of population frequency statistics. Defense counsel did not object to, or move to strike, the experts’ testimony regarding the DNA laboratory results without accompanying statistical data. Dr. Weber testified that all that could be extrapolated from the PCR tests that were performed was that petitioner could not be excluded from the class of persons who possibly could have been a source of the DNA samples recovered from the victim.

Word confirmed in her testimony that PCR testing cannot produce a “match” in the sense of a unique identification. Neither Weber nor Word, however, testified regarding the statistical significance of petitioner’s DNA match. Petitioner testified in his defense at trial. His defense was alibi.

He denied any involvement in the murder, admitting that he had sexual intercourse with the victim, but claiming that it was consensual and occurred the evening before the murder. He also testified that he gave the revolver to Troy ³⁴³ King, claiming, without further explanation, that Sidney Scott had given it to him in December. He testified that, because he had no use for the gun, he had given it to King, who collected guns, as a gift. On December 8, 1994, petitioner was convicted by a jury in the Circuit Court for Anne Arundel County of first degree felony murder, first degree rape, kidnapping, and the use of a handgun in the commission of a crime of violence.

He was sentenced to a term of imprisonment of life without the possibility of parole for murder, with concurrent sentences of twenty-five years for rape, twenty-five years for kidnapping, and fifteen years for the use of a handgun in the commission of a felony. Petitioner noted a timely appeal to the Court of Special Appeals, raising a multitude of issues. In an unreported opinion, the Court of Special Appeals held that the evidence was insufficient to sustain petitioner’s conviction for kidnapping, affirmed the judgments of conviction for murder and the handgun violation, and merged the rape conviction into the felony murder conviction for sentencing purposes. This Court denied Gross’ petition for writ of certiorari.

Gross v. State, 343 Md. 333 , 681 A.2d 68 (1996). On August 18, 1997, in the Circuit Court for Anne Arundel County, petitioner filed a Petition for Postconviction Relief pursuant to the Uniform Post Conviction Procedure Act, Maryland Code (1957, 1996 Repl.Vol.) Article 27, § 645A (current version at Maryland Code (1957, 2001 Repl.Vol.) § 7-101 et seq. of the Criminal Procedure Article). He alleged ineffective assistance of trial counsel, ineffective assistance of appellate counsel, and trial court error. At the postconviction hearing, he argued that his trial counsel mishandled the DNA evidence at trial and that his appellate counsel was deficient in failing to raise the DNA issues on appeal.

He also argued that he was denied effective assistance of trial counsel when his attorney failed to object to the State’s allegedly improper cross-examination of his character witnesses. ³⁴⁴ Petitioner raised three issues as trial court error. He argued that the trial court erred in denying his motion to exclude the DNA/PCR evidence, that the trial court erred in refusing to accept Dr. Rowe as a DNA/PCR expert, and that the trial court erred in permitting the State to introduce PCR evidence without accompanying population genetics statistics. The Circuit Court rejected all three of petitioner’s arguments regarding trial court error, finding no error, but granted postconviction relief for ineffective assistance of counsel. The postconviction court found that petitioner’s trial counsel was ineffective for failing to object to the use of DNA/PCR testing at trial, for failing properly to investigate, hire, and prepare a qualified, competent DNA/PCR expert, and for failing to object to the introduction of DNA/PCR evidence at trial without accompanying population genetics statistics.

The postconviction court repeatedly ruled that petitioner was prejudiced by certain of trial counsel’s errors because, in failing to object, trial counsel did not preserve an issue for appeal. In finding a Strickland violation, the postconviction court did so without conducting the proper assessment of prejudice under Strickland , finding that petitioner was per se prejudiced by the failure of trial counsel to preserve these issues for appeal, without any consideration of whether the waived issues had merit and despite its finding that the trial court committed no error. 2 Gross argued before the postconviction court that trial counsel was ineffective for failing to object to the State’s cross-examination of his character witnesses. 3 The State ³⁴⁵ asked four defense character witnesses who had expressed opinions as to Gross’ character whether their opinion would be affected if the witness had observed Gross with a handgun, if the witness had heard Gross say the gun “had a life on it,” or if the witness knew Gross had confessed to a friend that he had killed the victim. Petitioner argued that the questions were impermissible “guilt-assuming” questions. The postconviction court concluded that the cumulative effect of trial counsel’s errors denied petitioner his constitutional right to effective assistance of counsel and that petitioner’s appellate counsel, on direct appeal, was constitutionally ineffective for failing to appeal the trial court’s denial of petitioner’s motion to suppress the DNA/PCR evidence and for failing to appeal the trial court’s refusal to qualify petitioner’s expert in DNA/PCR evidence.

The postconviction court also rejected petitioner’s argument that trial counsel was ineffective in failing to object to the guilt-assuming questions asked by the State during cross-examination of his character witnesses. The postconviction court granted petitioner a new trial and, in an amended order, granted conditional alternative relief in the form of a belated appeal in the event that the granting of a new trial was set aside. Both parties sought leave to appeal to the Court of Special Appeals, pursuant to Maryland Code (1957, 1996 Repl.Vol.) Article 27, § 6451 (current version at Maryland Code (1957, 2001 Repl.Vol.) § 7-101 et seq. of the Criminal Procedure Article) and Maryland Rule 8-204. The Court of Special Appeals granted the State’s application for leave to appeal the grant of postconviction relief. 4 The intermediate appellate court reversed the postconviction court’s grant of a new trial ³⁴⁶ and the alternative relief of a belated appeal.

State v. Gross, 134 Md.App. 528, 619 , 760 A.2d 725, 773 (2000). The Court of Special Appeals held that the performance of petitioner’s appellate counsel “was not only effective but highly commendable.” Id. at 561 , 760 A.2d at 742 . Before turning to the issue of the effectiveness of trial counsel, the intermediate court stated: “We initially expected that at this point we would be able to move from a consideration of the effectiveness of appellate counsel back to a consideration of the effectiveness of trial .counsel by stepping from one neat and water-tight compartment of analysis to another. On closer examination, however, we are unable to do so.

Two-thirds of what we expected to be a traditional examination of the effectiveness of trial representation and trial prejudice turns out to be a hybrid issue.” Id. at 581 , 760 A.2d at 753 (emphasis added). In creating what Gross calls a “hybrid test” to address trial counsel’s failure to preserve admissibility issues for subsequent appellate review, the court pointed out the possibility of errors by trial counsel that would not have resulted in prejudice to a petitioner at the trial level, but that, nonetheless, resulted in prejudice at the appellate level, such as when counsel’s errors consist only of failing to renew an earlier objection that had been overruled by the trial court. See id. at 581-84 , 760 A.2d at 753-55 . The court defined this “hybrid issue” as requiring a determination of whether there was a “ ‘reasonable probability’ that, but for trial counsel’s failure to preserve an issue for appellate review, Gross ‘would have prevailed on his appeal.’ ” Id. at 581 , 760 A.2d at 753 .

In doing so, the court framed the issue as one of “a reasonable likelihood of a different appellate result, not a different trial result.” Id. The court then concluded that the most appropriate remedy would be to grant a belated direct appeal, not a new trial, and thereby allow the appellate court to consider those issues on their merits, notwithstanding their non-preservation. See- id. at 585-86 , 760 A.2d at 755 . ³⁴⁷ After laying out this test for assessing appellate prejudice from deficient trial counsel performance, the court concluded that, since the trial judge’s rulings were not in error, trial counsel’s performance in failing to preserve issues for appeal was not deficient and that there could not possibly have been any appellate prejudice in trial counsel’s failure to preserve them. See id. at 608-09 , 760 A.2d at 767-68 .

The Court of Special Appeals also addressed petitioner’s contention that trial counsel had been ineffective because he failed to object when the State allegedly conducted improper cross-examination of four of petitioner’s character witnesses at trial by asking “guilt-assuming” questions. See id. at 619-28 , 760 A.2d at 774-76 . Gross filed in this Court a petition for writ of certiorari, presenting three questions relating to the alleged ineffective assistance of counsel. The three questions were as follows: I. Whether the Court of Special Appeals erred in holding that Petitioner was not denied the effective assistance of trial and appellate counsel?

II

Did the lower court erroneously conclude that trial counsel was not ineffective for failing to object to improper guilt-assuming questions asked by the State of petitioner’s several character witnesses?

III

Whether the lower court erred in creating a new “hybrid test” for judging certain claims of ineffective assistance of trial counsel claims which conflicts with long standing Supreme Court and Court of Appeal precedent? Gross v. State, 362 Md. 623 , 766 A.2d 147 (2001). Petitioner contends that the Court of Special Appeals erred in crafting a new “hybrid test” for assessing claims of ineffective assistance of trial counsel that result in appellate prejudice. In contrast, the State argues that the Court of Special Appeals did not invent a new “hybrid” test for assessing claims of ineffective assistance of counsel but instead properly analyzed petitioner’s claims of ineffective assistance of counsel under traditional standards. ³⁴⁸ Whether the Court of Special Appeals did or did not adopt a new “hybrid” test for assessing ineffective assistance of counsel claims does not determine the outcome of this case and need not be further explored by us.

The principles governing ineffective assistance of counsel claims under the Sixth Amendment, both with regard to trial counsel and appellate counsel, are those set forth in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984); Redman v. State, 363 Md. 298, 309-14 , 768 A.2d 656, 662-65 , cert. denied, - U.S. -, 122 S.Ct. 140 , 151 L.Ed.2d 92 (2001); Perry v. State, 357 Md. 37, 78-87 , 741 A.2d 1162, 1184-89 (1999); Wiggins v. State, 352 Md. 580, 602-03 , 724 A.2d 1, 12 , cert. denied, 528 U.S. 832 , 120 S.Ct. 90 , 145 L.Ed.2d 76 (1999); Oken v. State, 343 Md. 256, 282-300 , 681 A.2d 30, 43-52 (1996), cert. denied, 519 U.S. 1079 , 117 S.Ct. 742 , 136 L.Ed.2d 681 (1997); Bowers v. State, 320 Md. 416, 423-27 , 578 A.2d 734, 737-39 (1990). The principles applied in the above-cited cases should govern the Court of Special Appeals’ decisions regarding ineffective assistance of counsel claims. The same principles shall determine our decision in the present case. Petitioner must satisfy the Strickland test for ineffective assistance of counsel — petitioner must establish that any deficient performance resulted in prejudice.

If there is no reasonable possibility that the appellate court would have ruled in his favor, there can be no Strickland prejudice. We recently reiterated the standard to be applied in determining whether a person has been denied effective assistance of counsel in Wiggins . Writing for the Court, Judge Wilner stated: “The standard to be applied in determining whether counsel’s representation comported with the requirements of the Sixth Amendment is that enunciated in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984); see Lockhart v. Fretwell, 506 U.S. 364 , 113 S.Ct. 838 , 122 L.Ed.2d 180 (1993); Oken v. State, 343 Md. 256, 283 , 681 A.2d 30, 43 (1996), cert. denied, 519 U.S. 1079 , 117 S.Ct. 742 , 136 L.Ed.2d 681 (1997). To prove a claim of Constitutionally ineffective assistance of counsel, appellant must establish ³⁴⁹ ‘that counsel’s performance was deficient and that the deficient performance prejudiced the defense.’ Oken, supra, at 283 , 681 A.2d at 43 .

To show a deficiency, appellant must (1) demonstrate that counsel’s acts or omissions, given the circumstances, ‘fell below an objective standard of reasonableness considering prevailing professional norms,’ id., and (2) overcome the presumption that the challenged conduct ‘be considered sound trial strategy.’ Id. To show that a deficiency prejudiced the defense,