Harris v. State

DEBORAH S. EYLER, Judge. The Circuit Court for Prince George’s County denied a motion by Percy Stanley Harris to reopen a closed postconviction proceeding, under Maryland Code (2001), section 7-104 of the Criminal Procedure Article (“CP”). 1 The issues on appeal are: ⁸³ I. Did the circuit court abuse its discretion in denying Harris’s motion to reopen his closed postconviction proceeding based on an allegation of ineffective assistance of trial counsel?

II

Did the circuit court abuse its discretion in denying Harris’s motion to reopen his closed postconviction proceeding based on allegations of ineffective assistance of postconviction counsel? For the following reasons, we shall affirm the order of the circuit court. FACTS AND PROCEEDINGS Background On January 22, 1988, in Sussex County, Virginia, Harris, then 43 years old, was charged with the abduction and attempted murder of Lyndetta Mickles, his 17-year-old girlfriend. 2 Three days later, Federal Bureau of Investigation (“FBI”) agents arrested Harris in Baltimore for unlawful flight to avoid prosecution of the Sussex County charges. Upon his arrest, Hams was advised of the charges against him as well as the factual allegations relating to the charges.

He then was released on bail. On February 13, 1988, Harris abducted Lyndetta from a bus stop in Baltimore, took her to a house in the District of Columbia, and beat her to try to force her to write a recantation letter. The police rescued Lyndetta on February 29, 1988. The next day, a Washington, D.C., court issued a warrant for Harris’s arrest on kidnapping charges. ⁸⁴ Sometime on the night of Sunday, April 10, or in the early morning hours of Monday, April 11, 1988, Lyndetta was murdered.

She was last seen leaving her grandmother’s home in Baltimore around 6:00 p.m., on April 10. A passerby discovered her body around 1:00 a.m. on April 11, in a secluded area near Watkins Park, in Prince George’s County, Maryland. Her wounds were fresh and she was still bleeding. An autopsy revealed that she had been shot in the head and the left shoulder with a .44 caliber pistol.

Additionally, a DNA test on semen found inside Lyndetta’s body and in her panties revealed the presence of Harris’s sperm. On April 14, 1988, Harris was charged, in the Circuit Court for Prince George’s County, with first-degree murder, second-degree murder, and the use of a handgun in the commission of a crime of violence in connection with Lyndetta’s killing. A warrant was issued for his arrest. On May 30, 1988, Harris was apprehended in Uncasville, Connecticut.

The charges against Harris went to trial on May 7, 1990. The trial ended in a hung jury on May 16, 1990. Harris’s second trial began on November 1,1990. November 1990 Trial One of the State’s witnesses was Viola Mickles, Lyndetta’s grandmother.

Mickles had testified as a rebuttal witness for the State at Harris’s first trial. Her testimony then consisted 'of explaining that she had received several telephone calls from an unidentified person between February 13 and 29, 1988 — the dates during which Harris held Lyndetta in Washington, D.C. At the retrial, however, Mickles was called in the State’s case-in-chief and testified that Lyndetta had come to her house for a visit on April 10, the day before her body was found. When the prosecutor asked Mickles what Lyndetta •had said during her visit, defense counsel objected because the testimony had not been introduced at the previous trial. A bench conference ensued.

The trial court decided to hear ⁸⁵ Mickles’s testimony out of the presence of the jury and then rule on its admissibility. Mickles testified that she had seen Lyndetta late in the afternoon on April 10, and that Lyndetta had said she was going to a movie with “Percy”; Harris then picked Lyndetta up in an automobile to go to the movies. Defense counsel objected to all of this testimony, and the trial judge ultimately ruled that Mickles would not be permitted to identify Harris before the jury by pointing to him or using the name “Percy.” Mickles would be permitted to give a physical description of the person she had seen in the car, however, and to relate what Lyndetta had said her intentions were that night — to go to the movies with Percy. The next day, Mickles testified before the jury that Lyndetta had said, on April 10, that “her and Percy was going to the movie.” Mickles further testified that, from her bedroom window, she saw Lyndetta get into a “middle-sized car ... dark [in] color” with a “[m]iddle-aged black” man driving.

On cross-examination, defense counsel established that the first time Mickles had seen Harris was when he picked up Lyndetta to take her to the movies that night, and that she had seen Harris since then during the ensuing court proceedings. FBI Agent Thomas Montgomery testified for the State. He recounted that, on April 13, 1988, acting as part of a fugitive investigation, he went to the home of Flora Holt, Harris’s aunt, in Washington, D.C. He told Holt he had a warrant for Harris’s arrest for the kidnapping of Lyndetta, and that Prince George’s County “police officers [ ] were interested in talking to him about homicide.” Agent Montgomery explained that he disclosed Lyndetta’s name to Holt as the victim of the kidnapping because the name was written on the arrest warrant. He did not disclose Lyndetta’s name as the homicide victim, however, because the murder had occurred in Prince George’s County and was being handled by authorities there.

Agent Montgomery further testified that, upon determining that Harris was not at Holt’s house, he started to leave. Holt ⁸⁶ summoned him back inside, saying that Harris was on the telephone and wanted to speak to him. Agent Montgomery spoke to Harris on the telephone, saying: “Mr. Harris, we have an arrest warrant for you, we’d like to work out some arrangements to take care of this warrant.” Harris responded, “What was this about, some homicide,” to which Agent Montgomery said, “Well, that’s not what I have a warrant for. I have a warrant charging you with kidnapping.” To this, Harris replied: “I didn’t kill that girl.

She was my baby. I wouldn’t have hurt her.” Harris then agreed to turn himself in to Metropolitan Police Department headquarters in Washington, D.C. the next day. He did not do so, however. Witnesses for the defense testified that Agent Montgomery indeed had related Lyndetta’s name to the homicide.

According to one such witness, Agent Montgomery pulled out a picture of Lyndetta and showed it to Holt, identifying the person in it as being the victim of the homicide. Another witness testified that, during Agent Montgomery’s telephone conversation with Harris, the agent told Harris he was wanted “because of Lyndetta .... ” The trial court gave the jury a flight instruction. Defense counsel objected, arguing: [Ijt’s my understanding [that a flight instruction] is normally given if there’s some evidence of fugitive flight. In this case we’re dealing with the warrant for murder that was issued by Prince George’s County.

We’re not talking about evidence of flight from any other warrants. The Court will recall the record indicates there was a kidnapping warrant issued out of the District of Columbia on or about March 1st ... at the time FBI Agent Montgomery went to [Holt’s house]. While he was at [Holt’s house] he received a telephone call from ... Harris.

There’s no evidence whatsoever where ... Harris was at the time that telephone call originated. All we have, at the time he was arrested, he was with his brother in Connecticut. There’s no indication that he went from a place to a place as the result of anybody being advised, anything being ⁸⁷ told to him, concerning possible charges.

As a fact, I believe at the time they went to [Holt’s house] there wasn’t even a warrant for murder issued yet. Prince George’s County Police had not issued it yet. They were there to execute a kidnapping warrant and to quote investigate an alleged kidnapping and that was the testimony in the record and I don’t think that [a] flight instruction would be appropriate unless the defendant is aware of the fact that there is a warrant for his arrest for a charge and that fact was never communicated to him. The court explained its reason for giving the flight instruction, stating: [T]he State adduced evidence that [Agent Montgomery did not] mention [ ] who it was that was deceased [when he went to Holt’s house], Tf it had laid there, then I would not give an instruction but there were witnesses who took the stand for the defense and put before this jury that indeed [Agent Montgomery] did say it was for Lyndetta and that’s why they were looking for him and based upon that I’m going to give the instruction.

The case was sent to the jury for deliberation on November 9, 1990. After a few hours, the jurors sent a note saying that they had reached a verdict on the second-degree murder and handgun charges but were deadlocked on the first-degree murder charge. The court asked defense counsel if he had advised Harris about the situation, to which defense counsel responded: I have advised my client the jury has reached a verdict on two of the three counts. I have advised him let’s go ahead and bring it in so we’ll know probably what the verdict is so bring it in.

I know we have a right to insist on a verdict on all three counts but I think we’ll just take it. The jury was brought into the courtroom and returned guilty verdicts on the charges of second-degree murder and use of a handgun in the commission of a crime of violence. The judge asked defense counsel whether he wanted to have the jury polled on those counts, and defense counsel respond ⁸⁸ ed in the affirmative. The jurors were polled.

The court then asked the jurors whether they thought a consensus as to the first-degree murder charge was reachable, to which the foreman responded, “the consensus was we cannot.” The court explained that it could not accept that outcome and directed the jurors to deliberate further, instructing: Folks, the verdict must be the considered judgment of each of you. In order to reach a verdict, all of you must agree. Your verdict must be unanimous. You must consult with one another and deliberate with the view to reaching an agreement if you can do so without violence to your individual judgment.

Each of you must decide the case for yourself but do so only after an impartial consideration of the evidence with your fellow jurors. During deliberations, do not hesitate to re-examine your own views. You should change your opinion if convinced you are wrong, but do not surrender your honest belief as to the weight or effect of the evidence only because of the opinion of your fellow jurors or for the mere purpose of reaching a verdict. What I have said to you, folks, is that take a look at the evidence.

Don’t be afraid to change your own view, but only if you feel that your view is an erroneous one. What I’m telling you further is that both sides deserve a resolution of that particular count. Please go back and work hard like you have been working and try again and thank you for the job you have done so far. You may now retire, folks.

Defense counsel objected to the court’s instruction on the ground that it was an impermissible “Allen charge.” 3 He did not object to the court’s decision to have the jury continue deliberating on the first-degree murder charge, after having returned a guilty verdict for second-degree murder. ⁸⁹ After further deliberations, the jury returned a verdict of guilty of first-degree murder. The jurors were polled, hearkened to their verdict, and discharged. On January 8, 1991, Harris was sentenced to hie imprisonment for the first-degree murder conviction and a consecutive 20 years imprisonment for the handgun conviction. The second-degree murder conviction was merged.

Direct Appeal Harris pursued an appeal in this Court. He raised three issues: [wjhether the trial court propounded an incorrect and coercive Allen charge ...; [wjhether the trial court erred in propounding a flight instruction; [andj [wjhether the trial court erred in its instructions ... [about the] use of a handgun in the commission of a crime of violence. On January 8, 1992, this Court filed an unreported per curiam opinion affirming the judgments. Harris v. State, No. 362, September Term 1991 (filed January 8, 1992).

We held that the Allen-type charge given by the trial court was “perfectly acceptable” and “closely adhered to ABA-recommended language” approved by the Court of Appeals in Kelly v. State, 270 Md. 139 , 310 A.2d 538 (1973). Slip op. at 11. Noting that it was “entirely reasonable that a jury, by relying solely on the circumstantial evidence presented, could doubt the coincidence of the fact that Harris suddenly should seek shelter in another state several hundred miles away from his usual area of abode[,j” we concluded that there was sufficient circumstantial evidence in the record to generate an instruction on flight. 4 Slip op. at 16. ⁹⁰ On February 17, 1992, our mandate issued. Thereafter, Harris filed a petition for writ of certiorari, which the Court of Appeals denied on April 24, 1992.

Harris v. State, 326 Md. 365 , 605 A.2d 101 (1992). Post Conviction Proceeding On March 12, 1997, Harris filed a petition for postconviction relief under the UPPA, which, at the time, was codified at Maryland Code (1957, 1992 Repl.Vol., with amendments effective November 1, 1995), Article 27, sections 645A through 645J. 5 He requested a hearing, a new trial, and costs of the proceeding. He set forth three “claims”: due process errors by the trial court affecting “fundamental rights” that he did not “intelligently and knowingly” waive; ineffective assistance of trial counsel; and ineffective assistance of appellate counsel. Harris’s due process claim was three-fold.

First, he alleged that the trial court used “Improper Procedure[ ]” to obtain the guilty verdict for first-degree murder because, when the jury returned a guilty verdict for second-degree murder, that verdict was final, accepted by all parties, and obtained in accordance with Maryland Rule 4-327(a) and (e), and, as such, amounted to an “implied acquittal” on the first-degree murder charge. The subsequent guilty verdict on the first-degree murder charge therefore violated his constitutional right not to be placed in double jeopardy, which he had not “intelligently and knowingly waived” in a prior proceeding. Relatedly, Harris alleged that the trial court had erred by allowing the jury to deliberate on the first-degree murder charge after being polled on its verdict of guilty of second-degree murder, noting that “[a] verdict is final when a jury is polled.” This involved a fundamental right that he had not “intelligently and knowingly waived.” Second, Harris alleged that the trial court’s instruction on “reasonable doubt” had reduced the State’s burden of proof below the “beyond a reasonable doubt” standard, violating his ⁹¹ fundamental right to the presumption of innocence, which he also had not knowingly and intelligently waived. Finally, Harris alleged that the trial court had committed plain error by not striking statements by the prosecutor in closing argument expressing a belief that the State’s witnesses were credible and suggesting defense counsel had purposely misled the jury during trial.

Harris’s ineffective assistance of trial counsel claim rested on seven grounds. Most significantly, he alleged that trial counsel had performed deficiently by “open[ing] the door,” on cross-examination of Mickles, so as to have her identify him as the man who came to pick up Lyndetta in a dark car on Sunday, April 10, 1988. Trial counsel’s questions elicited damaging evidence that Harris was the last person seen with Lyndetta before her murder-after trial counsel had successfully convinced the court to preclude Mickles from identifying Harris as the man Lyndetta got into the car with and from referring to him as “Percy.” 6 Finally, Harris’s claim of ineffective assistance of appellate counsel rested on nine grounds. Most significantly, he alleged that appellate counsel had performed deficiently by not raising the double jeopardy issue on direct appeal. 7 ⁹² On April 2, 1997, the State filed an opposition to Harris’s petition for postconviction relief, a memorandum of law in support, and attached portions of the trial transcript.

The postconviction court held an evidentiary hearing on June 20, 1997. On June 26, 1997, Harris filed a supplemental memorandum to his petition for postconviction relief. In it, he emphasized that the trial court’s “agreement” with trial counsel and Harris to accept a partial verdict barred further deliberation on the first-degree murder charge; and that, by allowing the jury to further deliberate on that charge, the trial court “breached its agreement” with trial counsel. On this logic, the jury’s guilty verdict on the second-degree murder charge was an “implied acquittal” and therefore allowing it to consider the first-degree murder charge was improper.

Additionally, Harris reasserted that the trial court’s reasonable doubt instruction was defective under federal constitutional law. On July 10, 1997, Harris filed a second supplemental memorandum, addressing the State’s opposition to his petition. Harris attacked the State’s argument that State v. Griffiths, 838 Md. 485 , 659 A.2d 876 (1995), supported the proposition that “a retrial for a greater offense after a hung jury is not prohibited under Maryland law when the jury convicts on a ⁹³ lesser included offense and is hung on the greater offense.” He argued that his case was different than Griffiths because the parties had agreed not to wait for a verdict on the first-degree murder charge when they decided to accept the jury’s decision on the other charges. He cited his trial counsel’s statement, “I know we have a right to insist on a verdict on all three counts but I think we’ll just take it,” and the trial court’s response, “Very well sir.

With that understanding on the record, let’s bring them in,” as evidence that there was an agreement not to allow the jury to deliberate on the remaining count. On September 5, 1997, the postconviction court issued a memorandum opinion and order denying Harris’s petition for postconviction relief. The court noted that, under the UPPA, Harris was required to prove that he had not waived “any alleged grounds for [ ] relief” and to allege errors that had not been “previously and finally litigated.” The postconviction court explained that, with respect to fundamental rights, “waiver” in the postconviction context means “intelligently and knowingly failing to make such allegations before trial, at trial or on direct appeal, unless the failure is excused because of ‘special circumstances.’ ” After characterizing Harris’s claims of trial court error as alleged due process violations, the court found that Harris had “done little or nothing” to rebut the presumption that he had waived those grounds for relief and had not demonstrated any “special circumstances” for why he had failed to pursue the alleged instances of trial court error on direct appeal. With regard to the ineffective assistance of trial and appellate counsel claims, the postconviction court explained that, under Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), Harris had the burden of showing that counsel performed deficiently and that the deficient performance prejudiced him.

The court then rejected Harris’s ineffective assistance arguments as without merit. Most significantly, it found that trial counsel had not performed deficiently by asking Mickles to identify Harris in court, after successfully obtaining a ruling precluding the State from ⁹⁴ doing the same, saying that “no persuasive evidence, reasons or authority demonstrating error” were shown. The court also found that the record did not show any agreement between the parties and the trial court that, upon taking the verdict on second-degree murder and the handgun charge, the jury deliberations would end. 8 On September 26, 1997, Harris filed in this Court an application for leave to appeal the postconviction order. This Court denied the application on January 14, 1998.

Motion to Reopen Post Conviction Proceeding On September 20, 2002, Harris filed a motion to reopen the postconviction proceeding under CP section 7-102 and requested a hearing under CP section 7-108(b)(l). In his supporting memorandum of law, he argued that it was “in the interests of justice” to reopen the proceeding because he had been denied effective assistance of counsel at the trial, appellate, and postconviction proceedings; and that, upon reopening the proceeding, “in the interests of justice,” the postconviction court should vacate his conviction and remand the case for a new trial. In addition to making the same ineffectiveness arguments raised against trial and appellate counsel in his 1997 petition for postconviction relief, Harris argued that his postconviction counsel was ineffective for failing to criticize trial counsel for not objecting to the flight instruction, when there was evidence that Harris might have fled the jurisdiction because of the kidnapping and not the murder charge; and for failing to criticize appellate counsel for not challenging on appeal Mickles’s “suggestive identification” of him at trial. Additionally, Harris alleged that his postconviction counsel was ineffective because he did not sufficiently plead the “prejudice prong” of the ineffectiveness claim. ⁹⁵ On March 19, 2003, the State filed an opposition to the motion to reopen, arguing that Harris had not shown that it was “in the interests of justice” to reopen the closed postconviction proceedings.

With regard to the flight instruction, the State argued, inter alia, that there was ample evidence in the record for the jury to infer that, when Harris fled, he knew he was or would be charged with Lyndetta’s murder. In response to Harris’s allegation that his postconviction counsel had failed to plead prejudice, under Strickland , the State pointed to the petition for postconviction relief, which in fact pleaded prejudice. Finally, as to the impropriety vel non of the trial court’s decision to allow the jury to continue to deliberate the first-degree murder charge after it rendered guilty verdicts on the second-degree murder and the handgun charges, the State argued that the issue had been fully and fairly litigated “in excruciating detail” (including in this Court’s unreported opinion discussed above), and thus was waived. On April 17, 2003, Harris wrote a letter to the court, responding to the State’s opposition and arguing that the issue of whether it was proper for the jury to continue deliberating on the first-degree murder charge had not been fully and fairly litigated.

He argued, inter alia, that, under Hoffert v. State, 319 Md. 377 , 572 A.2d 536 (1990), “[o]nce a jury’s verdict is established as unanimous, whether by hearkening or polling ... [t]he case is no longer within the province of the jury, and its verdict is final.” On April 30, 2003, the court issued a “Memorandum and Order” denying Harris’s motion to reopen, without a hearing. The court briefly recounted the procedural history of the case. After explaining that it has discretion under the UPPA to reopen a postconviction proceeding upon determining that to do so would be “in the interests of justice,” the court concluded that Harris’s motion to reopen was without merit. On May 29, 2003, Harris filed a motion for reconsideration, alleging that the trial court should reconsider its decision because it had summarily denied Harris’s motion to reopen ⁹⁶ closed postconviction proceedings without issuing an opinion or statement on the record discussing Harris’s specific arguments individually.

On June 5, 2003, the court denied Harris’s motion for reconsideration. On July 7, 2003, Harris filed an application for leave to appeal, which was granted on October 24, 2003. STANDARD OF REVIEW We review a circuit court’s denial of a motion to reopen a closed postconviction proceeding for abuse of discretion. Gray v. State, 158 Md.App. 635, 648 , 857 A.2d 1176 (2004) (concluding that the circuit court did not “abuse its discretion by refusing to reopen the postconviction proceeding”); see also CP § 7-104 (stating that a court “may reopen a postconviction proceeding” if the court determines, in exercising its discretion, that the action is “in the interests of justice”).

DISCUSSION The UPPA applies to persons “confined under sentence of death or imprisonment” or “on parole or probation.” CP § 7-101. Generally, such a person may file a petition for postconviction relief for up to ten years after a sentence is imposed, 9 if he alleges: (1) the sentence or judgment was imposed in violation of the Constitution of the United States or the Constitution or laws of the State; (2) the court lacked jurisdiction to impose the sentence; (3) the sentence exceeds the maximum allowed by law; or (4) the sentence is otherwise subject to collateral attack on a ground of alleged error that would otherwise be available ⁹⁷ under a writ of habeas corpus, writ of coram nobis, or other common law or statutory remedy. CP § 7-102(a). In addition to these requirements, to file a petition for postconviction relief, a person also must be seeking to set aside or correct a judgment or sentence, and the error alleged regarding the judgment or sentence must not have been “previously and finally litigated or waived” in the proceeding resulting in the conviction, or in any other subsequent proceeding in which the person sought relief from his conviction.

CP § 7 — 102(b). A petition for postconviction relief must include, among other things, the allegations of error, a statement of facts supporting the allegations of error, a statement of facts demonstrating that the petitioner never waived the allegations of error, and the type of relief sought. Md. Rule 4-402(a). A person may file but one petition for postconviction relief for each trial or sentence. 10 CP § 7-103(a).

However, a circuit court may reopen a closed postconviction proceeding upon determining that doing so is “in the interests of justice.” CP § 7-104. As a matter of right, a person filing a petition for postconviction relief is entitled to a hearing and the assistance of counsel. CP § 7-108(a); Md. Rule 4-406(a). There is no entitlement to have a closed postconviction proceeding reopened unless the petitioner asserts facts that, “if proven to be true at a subsequent hearingf,] establish that postconviction relief would have been granted but for the ineffective assis ⁹⁸ tance of ... postconviction counsel.” Stovall v. State, 144 Md.App. 711, 716 , 800 A.2d 31 (2002); see also CP § 7-104.

The UPPA was created in part to provide a forum for litigating ineffective assistance of counsel claims. Harris v. State, 299 Md. 511, 517 , 474 A.2d 890 (1984). The Sixth Amendment to the United States Constitution guarantees all criminal defendants the right to the assistance of counsel. Strickland, supra, 466 U.S. at 684-85 , 104 S.Ct. 2052 .

Furthermore, “the right to counsel is the right to the effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759 , 771 n. 14, 90 S.Ct. 1441 , 25 L.Ed.2d 763 (1970); see also Mosley v. State, 378 Md. 548, 557 , 836 A.2d 678 (2003) (“Integral to [the right to counsel under Maryland law] is the right to effective assistance of counsel.”). The right to effective assistance of counsel applies even when the right arises under statutory law. Evitts v. Lucey, 469 U.S. 387, 401 , 105 S.Ct. 830 , 83 L.Ed.2d 821 (1985); State v. Flansburg, 345 Md. 694, 703 , 694 A.2d 462 (1997)(“Regard-less of the source, the right to counsel means the right to the effective assistance of counsel.”); see also Stovall, supra, 144 Md.App. at 715 , 800 A.2d 31 (holding that a postconviction petitioner has a right to effective assistance of postconviction counsel). In Maryland, courts must apply the standard announced in Strickland, supra, to determine whether counsel’s representation comported with the requirements of the Sixth Amendment.

Gross v. State, 371 Md. 334, 348 , 809 A.2d 627 (2002). To prevail on an ineffective assistance of counsel claim, a petitioner must satisfy a two-pronged test: he must demonstrate that his counsel’s performance was deficient and that he was prejudiced by the deficient performance. Strickland, supra, 466 U.S. at 687 , 104 S.Ct. 2052 ; Mosley, supra, 378 Md. at 557 , 836 A.2d 678 ; State v. Peterson, 158 Md.App. 558, 583 , 857 A.2d 1132 (2004). To prove the performance prong of the Strickland standard, the petitioner must show that counsel’s representation “fell below an objective standard of reasonableness,” Wiggins v. ⁹⁹ Smith, 539 U.S. 510, 521, 123 S.Ct. 2527 , 156 L.Ed.2d 471 (2003) (quoting Strickland, supra, 466 U.S. at 688 , 104 S.Ct. 2052 ), as measured by “prevailing professional norms.” Id.; Mosley, supra, 378 Md. at 557 , 836 A.2d 678 .

Until a petitioner proves otherwise, the court presumes counsel’s representation was professionally competent and “derived not from error but from trial strategy.” Peterson, supra, 158 Md.App. at 584, 857 A.2d 1132 (quoting Mosley, supra, 378 Md. at 558 , 836 A.2d 678 ). In Strickland , the Supreme Court held that, in situations in which prejudice is not presumed, “the 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” 466 U.S. at 694 , 104 S.Ct. 2052 . See also Holland v. Jackson, — U.S. -, 124 S.Ct. 2736, 2738 , 159 L.Ed.2d 683 (2004) (same).

Our Court of Appeals has held that the Strickland prejudice standard aptly can be described as whether there was a “substantial or significant possibility that the verdict of the trier of fact would have been affected.” Bowers v. State, 320 Md. 416, 427 , 578 A.2d 734 (1990). See also Oken v. State, 343 Md. 256, 284 , 681 A.2d 30 (1996) (stating that the defendant “must show that there is a substantial possibility that, but for counsel’s unprofessional errors, the result of the proceeding would have been different”); Williams v. State, 326 Md. 367, 373-74 , 605 A.2d 103 (1992) (same). With that legal background, we turn to Harris’s contentions. I. Harris first contends that the postconviction court abused its discretion in denying his motion to reopen based on ineffective assistance of trial counsel.

He argues that his trial counsel performed deficiently, to his prejudice, by not objecting when the trial court directed the jury to continue deliberating on the first-degree murder charge after the court ¹⁰⁰ accepted verdicts of guilty of second-degree murder and handgun charges, and polled the jury on those verdicts. This contention only can have merit if Harris’s double jeopardy argument has merit, which it does not. The Fifth Amendment to the United States Constitution protects persons from being “subject for the same offence to be twice put in jeopardy for life or limb.” The right extends to the States by application of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794 , 89 S.Ct. 2056 , 23 L.Ed.2d 707 (1969); State v. Woodson, 338 Md. 322, 327-28 , 658 A.2d 272 (1995).

Maryland common law also prohibits double jeopardy for the same crime. Smith v. State, 299 Md. 158 , 163 n. 2, 472 A.2d 988 (1984). Specifically, in Maryland, once the “jury or the judge[ ] intentionally renders a verdict of ‘not guilty,’ the verdict is final, and the defendant cannot later be retried on or found guilty of the same charge.” Id. at 163 , 472 A.2d 988 (quoting Pugh v. State, 271 Md. 701, 706 , 319 A.2d 542 (1974)). One of the essential characteristics of a final verdict is unanimity.

Md. Const, art. 21 (“That in all criminal prosecutions, every man hath a right ... to a speedy trial by an impartial jury, without whose unanimous consent he ought not to be found guilty.”). See also Ford v. State, 12 Md. 514, 549 (1859) (noting that unanimity is