Mahai v. State

Kenneth Mahai v. State of Maryland, No. 41, September Term, 2020. Opinion by Getty, J. CRIMINAL LAW – COURTS AND JUDICIAL PROCEEDINGS – POSTCONVICTION PROCEEDINGS – APPLICATION FOR LEAVE TO APPEAL DENIED – Court of Appeals held that § 12-202 of the Courts and Judicial Proceedings Article of the Maryland Code is constitutional under Article IV, § 14A of the Maryland Constitution. Court of Appeals held that phrase “intermediate appellate jurisdiction” in Article IV, § 14A does not create a substantive limit on the Court of Special Appeals’ jurisdiction. Circuit Court for Baltimore City Case No. 107109037, P.C. 11825 Argued: March 8, 2021 IN THE COURT OF APPEALS OF MARYLAND No. 41 September Term, 2020 KENNETH MAHAI V. STATE OF MARYLAND Barbera, C.J., McDonald Watts Hotten Getty Booth Biran JJ.

Opinion by Getty, J. Filed: July 20, 2021 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2021-07-20 15:10-04:00 Suzanne C. Johnson, Clerk The Court of Special Appeals’ denial of an application for leave to appeal is a “winnowing device[] designed to sift precious metal from ordinary silt[,]” similar to this Court’s denial of a petition for writ of certiorari. Conaway v. State, 464 Md. 505 , 524 n.18 (2019). The “objective of both processes is the ascertainment of whether there is something about the questions raised in either context that merits further consideration.” Id. at 523 n.18. In this case, we address the constitutionality of § 12-202 of the Courts and Judicial Proceedings Article (“CJ”) of the Maryland Code, which precludes this Court from reviewing the Court of Special Appeals’ denial of an application for leave to appeal in a postconviction proceeding.

After considering the plain language and history of the adoption of Article IV, § 14A of the Maryland Constitution (“Article IV, § 14A”), we hold that Mr. Mahai has failed to demonstrate that CJ § 12-202 clearly violates the Maryland Constitution and thus has failed to overcome the presumption of constitutionality that is afforded to CJ § 12-202. We therefore dismiss this appeal due to lack of subject matter jurisdiction pursuant to CJ § 12-202. BACKGROUND A. Stabbing and Police Investigation. The murder of Jermaine Morrison occurred in broad daylight on Nome Street at the Holabird Park Apartments in Woodmere, Baltimore City, Maryland.

Several witnesses in the vicinity of the murder recounted their observations to investigators from the Baltimore City Police Department about a street fight that resulted in deadly violence. One witness, Angel Rodriguez, stated that he left for lunch about noon on October 25, 2005, from his job in the maintenance department of the Holabird Park Apartments. He also lived in the same apartment complex at 1717 Nome Street. On the walk to his apartment, he encountered two individuals that he knew, Mr. Morrison and Kenneth Mahai.

Mr. Rodriguez could see and hear Mr. Morrison and Mr. Mahai arguing about “being on the same street.” A second witness, Stephen Smith, was walking from his residence at 1719 Nome Street to a nearby gas station. Mr. Smith observed Mr. Mahai and Mr. Morrison engaged in a fistfight. A third person, unknown to Mr. Smith, broke up the fight, and Mr. Smith watched Mr. Morrison leave on foot. Phyllis Becote, who lived near Nome Street, was a third witness.

About the same time that the first two witnesses saw the street fight, she was alerted by her son that a man had just fallen down on the street. Ms. Becote went outside and saw Mr. Morrison laying on the ground. She instructed her son to call for emergency assistance and then attempted to determine what was wrong with Mr. Morrison. Moving his shirt aside, she saw “a lot of blood.” In response, Ms. Becote covered the bleeding wound and waited for an ambulance to arrive.

A fourth—and key—witness, Sharon Mosely, was also a resident of Nome Street. While Ms. Mosely was visiting a friend who lived in the same apartment building as she did, Mr. Mahai entered the apartment and told Ms. Mosely and her friend that he had “just got in a[n] altercation with this guy and he stabbed the guy three times.” Mr. Mahai then cleaned a knife off, threw the knife into the trash, took the trash out, and dumped it by a nearby shop. 2 Meanwhile, Mr. Morrison was transported to Johns Hopkins Bayview Hospital by ambulance where he was pronounced dead. A postmortem examination was conducted by the Office of the Chief Medical Examiner of Maryland. The medical examiner concluded that Mr. Morrison died of stab wounds to his chest, abdomen, and arm.

While investigating Mr. Morrison’s death, the police conducted witness interviews of Ms. Becote, Mr. Rodriguez, Mr. Smith, and Ms. Mosely. Ms. Becote was interviewed in a neighborhood canvas. Mr. Rodriquez was later interviewed and told the police that Mr. Mahai and Mr. Morrison were “neighborhood drug dealers” who had an altercation “over territory.” In his police interview, Mr. Smith stated that he observed Mr. Mahai hit Mr. Morrison twice in the “chest area” and additionally identified Mr. Mahai in a photo array. Finally, Ms. Mosely provided the police with a taped statement recounting her observations of Mr. Mahai’s actions and statements on October 25.

Ms. Mosely also identified Mr. Mahai in a photo array and wrote on the array form a short description of the same facts that she provided in the taped statement. B. First Indictment. Less than a month after Mr. Morrison’s death, Mr. Mahai was arrested on November 20 and charged with the murder of Mr. Morrison. The following month, a grand jury indicted Mr. Mahai on December 19 in the Circuit Court for Baltimore City on charges of first-degree murder, carrying a weapon openly with intent to injure, and carrying a concealed dangerous weapon.

An initial trial date was set for April 24, 2006. However, the trial was repeatedly postponed. Mr. Mahai requested the first postponement due to a change in his counsel. 3 The second postponement occurred at the request of Mr. Mahai’s counsel because of additional discovery that had been provided by the State. The State then requested the third, fourth, and fifth postponements because of the State’s continued difficulty in locating their key witness, Ms. Mosley.

At the time of the fourth postponement, Mr. Mahai began asserting his Sixth Amendment right to a speedy trial and that the delay in “bringing [him] to trial was now of constitutional proportion[.]” On December 6, the State requested yet another postponement because of the ongoing problems in locating witnesses. The circuit court granted the State an additional twenty-four hours to produce its witnesses. However, the next day the State was still unable to produce its witnesses and again requested a postponement. The circuit court denied this request, and the State, pursuant to Maryland Rule 4-247(a), entered a nolle prosequi on the record thereby terminating the prosecution and dismissing the charges against Mr. Mahai.

C. Second Indictment, Trial, and Sentencing. On February 7, 2007, the court issued another warrant for Mr. Mahai’s arrest for the same charges of the murder of Mr. Morrison. On April 13, Mr. Mahai was arrested. Six days later, a grand jury indicted Mr. Mahai in the Circuit Court for Baltimore City on the same first-degree murder and weapons charges as the first indictment.

Mr. Mahai filed a motion to dismiss on May 17. In the motion, Mr. Mahai raised the identical arguments from his prior trial that his Sixth Amendment constitutional right to a speedy trial had been violated as a result of the eighteen-month delay from the time of his first arrest until the time of this motion. The circuit court judge denied Mr. Mahai’s 4 motion from the bench. The circuit court judge reasoned that the period of time and causes for the delay were not sufficient to warrant dismissing the case, and the judge had “heard nothing that would deny [Mr. Mahai] a right to a fair trial.” A three-day jury trial was held in the Circuit Court for Baltimore City on August 8, 9, and 10.

The jury found Mr. Mahai guilty of first-degree murder, carrying a weapon openly with intent to injure, and carrying a concealed dangerous weapon. On September 28, the circuit court judge sentenced Mr. Mahai to life in prison for first-degree murder and a consecutive three-year term for carrying a weapon openly with intent to injure. The remaining weapon conviction, carrying a concealed dangerous weapon, was merged for sentencing purposes. Mr. Mahai timely noted an appeal.

D. Appeal and Opinion of the Court of Special Appeals. On September 8, 2009, in an unreported opinion, the Court of Special Appeals affirmed Mr. Mahai’s murder conviction but reversed his weapon convictions. Mahai v. State, No. 1748, Sept. Term, 2007 (filed Sept. 8, 2009). The court first applied the balancing test announced in Barker v. Wingo, 407 U.S. 514 (1972), that weighs both the conduct of the prosecution and the defendant, and the court held that Mr. Mahai’s right to a speedy trial was not violated.

Next, the intermediate appellate court turned to Mr. Mahai’s argument that various jury instructions were erroneous and misleading. Mr. Mahai conceded that his defense counsel at trial (“trial counsel”) had not objected to these instructions at trial. However, he argued that on appeal the court should review the instructions for plain error. The court individually analyzed each jury instruction at issue. 5 On the issue of the opening and closing jury instructions pertaining to reasonable doubt, the court held that plain error review of these instructions was not warranted.

On the issue of the opening and final instructions on the state’s failure to use investigative techniques, the court held there was no plain error. Notably, on the issue of the jury instruction pertaining to whether a penknife is a dangerous weapon, the court held that the circuit court committed plain error by failing to include a necessary element of the offense of carrying a dangerous weapon. Consequently, on the basis of this plain error, the intermediate appellate court reversed Mr. Mahai’s convictions for carrying a dangerous weapon openly with intent to injure and carrying a concealed dangerous weapon. These two charges were remanded for a new trial.1 Finally, Mr. Mahai contended that his trial counsel’s failure to object to the sufficiency of the evidence relating to his alleged use of a penknife deprived him of effective assistance of counsel.

In analyzing this argument, the court noted that a postconviction proceeding was the appropriate way for Mr. Mahai to raise a claim of ineffective assistance of counsel, and absent any showing on the record otherwise, the court must adhere to the presumption that trial counsel’s conduct was reasonable professional conduct. Concluding that Mr. Mahai failed to rebut this presumption, the court did not address Mr. Mahai’s claim of ineffective assistance of counsel. Mr. Mahai filed a pro se petition for writ of certiorari to this Court, which was denied on December 18, 2009. Mahai v. State, 411 Md. 741 (2009). 1 On October 26, 2009, following the Court of Special Appeals’ decision, the State dismissed both weapons charges by entering a nolle prosequi. 6 E. Postconviction Petition and Hearing.

On September 6, 2017, nearly ten years after Mr. Mahai was sentenced for his first- degree murder conviction, he filed a pro se petition for postconviction relief, which was later supplemented by postconviction counsel. The supplemented petition sought a new trial, permission to file a belated motion for modification of his sentence, and permission to file a belated application for review of his sentence by a three-judge panel. The petition alleged ineffective assistance of trial counsel and appellate counsel on the basis of nine individual claims. The Circuit Court for Baltimore City held a hearing on Mr. Mahai’s postconviction petition over two days, September 9 and 10, 2019.

At the hearing, Mr. Mahai’s postconviction counsel argued that his trial counsel failed to object to a defective voir dire process that permitted jurors to self-assess their ability to be fair, and his appellate counsel failed to present a claim of plain error in connection with the voir dire process on direct appeal. Mr. Mahai further contended that his trial counsel’s failure to object to the improper voir dire deprived him of his right to an impartial jury resulting in an unfair trial from which prejudice could be presumed. Mr. Mahai’s postconviction counsel argued that the trial judge inappropriately assisted the prosecution by asking various questions of witnesses to “fill in the gaps” of the prosecution’s case. Noting that Mr. Mahai’s trial counsel did not object to these questions, Mr. Mahai’s postconviction counsel asserted that both the trial court’s error and the ineffective assistance of trial counsel prejudiced Mr. Mahai. 7 Additionally, similar to an argument raised on direct appeal, Mr. Mahai’s postconviction counsel pointed to inconsistent jury instructions pertaining to reasonable doubt—one given at the beginning of trial and one given prior to jury deliberations.

Mr. Mahai’s postconviction counsel argued that trial counsel provided ineffective assistance of counsel by failing to object to these instructions or to request a curative instruction. Mr. Mahai’s postconviction counsel also argued that his trial counsel was ineffective for failing to file a motion for modification of his sentence and a motion for a three-judge panel to review his sentence—both of which he requested in a written letter to his trial counsel on the day following his conviction. His postconviction counsel argued, in the aggregate, the prejudice resulting from these issues entitled Mr. Mahai to a new trial. In response, the State argued that Mr. Mahai waived his voir dire arguments when he failed to raise them on direct appeal.

On the issue of the trial judge’s role in jury communication and witness questioning, the State noted that the Court of Special Appeals had already held that there was no excessive interference on the part of the trial judge. Additionally, the State argued there was no prejudice resulting from the trial judge’s conduct and that lack of objection by trial counsel was a deliberate and strategic tactic at trial instead of ineffective assistance. The State further argued that the trial judge’s jury instructions were proper, and, in any event, no prejudice resulted from the reasonable doubt jury instructions given. Lastly, the State did not object to the postconviction court allowing Mr. Mahai to file a belated motion for sentence modification or a belated application for a three-judge panel to review his sentence. 8 On February 27, 2020, the postconviction court entered a written opinion and order denying Mr. Mahai’s petition for relief.

The opinion thoroughly addressed each issue raised in the petition and argued at the hearing. Regarding trial counsel’s failure to object to the formulation of the voir dire questions, the court held that “nothing [was] improper about the questions posed to the jury” and therefore Mr. Mahai’s claim of ineffective assistance of counsel on this ground was meritless. Regarding trial counsel’s failure to object to what Mr. Mahai construed as inconsistent jury instructions pertaining to reasonable doubt, the court drew a distinction between “a trial judge giving preliminary instructions and jury instructions after the presentation of evidence prior to deliberation[.]” The court reasoned that the trial judge intended to give an “overview of what was to come from the trial” by giving preliminary remarks on reasonable doubt, and did not intend these preliminary remarks to be taken as jury instructions. Thus, the lack of objection or request for a curative instruction by trial counsel did not support a claim of ineffective assistance of counsel.

Finally, regarding trial counsel’s failure to file post-trial motions for sentence review and modification, the court ruled that Mr. Mahai had not provided sufficient evidence that he timely asked trial counsel to file these motions. Ultimately, the court concluded that all of the issues raised, taken in the aggregate, did not result in any prejudice to Mr. Mahai, and the court accordingly held that Mr. Mahai’s Sixth Amendment right to a speedy and fair trial had not been violated. 9 F. Application for Leave to Appeal Postconviction Denial. On March 17, 2020, Mr. Mahai filed an application for leave to appeal in the Court of Special Appeals. In an order issued on August 14, 2020, the Court of Special Appeals denied Mr. Mahai’s application for leave to appeal without explanation.

Subsequently, Mr. Mahai timely petitioned this Court for writ of certiorari, which we granted on November 10, 2020. Mahai v. State, 471 Md. 263 (2020). Before us are the following questions: 1. Does Article IV, § 14A of the Maryland Constitution, which authorizes the Court of Special Appeals to exercise only intermediate appellate jurisdiction, preclude the Court of Special Appeals from exercising final appellate jurisdiction by issuing a summary denial of an application for leave to appeal without addressing the issues raised, which has been held to bar further appellate review under CJ § 12-202? 2.

Did Petitioner receive ineffective assistance of counsel at trial when counsel failed to object to jury instructions regarding the definition of reasonable doubt? 3. Did Petitioner receive ineffective assistance of counsel at trial when counsel failed to object to voir dire questions that shifted the burden of determining bias to the venirepersons? 4. Did Petitioner receive ineffective assistance of counsel when counsel failed to file a motion for modification of sentence and a motion for sentence review? For the reasons more fully stated below, we answer the first question in the negative and hold that CJ § 12-202 is not precluded by Article IV, §14A.

Therefore, by finding that this Court does not have jurisdiction to review the Court of Special Appeals’ discretionary denial of Mr. Mahai’s application for leave to appeal in his postconviction proceeding 10 pursuant to CJ § 12-202, we do not reach the second, third, or fourth questions. We accordingly dismiss this appeal for lack of subject matter jurisdiction. STANDARD OF REVIEW To declare an act of a coordinate branch of government unconstitutional is an exercise of judicial review “of a grave and delicate nature, which never can be warranted but in a clear case.” Anderson v. Baker, 23 Md. 531, 628 (1865) (emphasis omitted). “We begin with a presumption that the statute is constitutional,” and the party challenging the statute has the burden of overcoming this presumption. Walker v. State, 432 Md. 587, 626 (2013) (citing Galloway v. State, 365 Md. 599 , 610–11 (2001)).

To overcome this presumption, there “must be a clear and unequivocal breach of the Constitution, not a doubtful and argumentative implication.” Anderson, 23 Md. at 628 . DISCUSSION A. Parties’ Contentions. Mr. Mahai, Petitioner, argues that the Court of Special Appeals is constitutionally precluded under Article IV, § 14A from exercising final appellate jurisdiction by denying an application for leave to appeal without addressing the issues raised. In supporting this argument, Mr. Mahai points to Article IV, § 14A, which states in relevant part, “[t]he General Assembly may prescribe the intermediate appellate jurisdiction of these courts of appeal . . . .” Md. Const. art.

IV, § 14A (emphasis added). Mr. Mahai maintains that CJ § 12-202, which prohibits the Court of Appeals from reviewing the Court of Special Appeals’ denial of an application for leave to appeal in a postconviction proceeding, is 11 unconstitutional because it confers final, not intermediate, appellate jurisdiction on the Court of Special Appeals. Moreover, Mr. Mahai points out that pursuant to Article IV, § 15 of the Maryland Constitution (“Article IV, § 15”), “the judgment of the Court of Appeals shall be final and conclusive.” Md. Const. art. IV, § 15.

In light of this constitutional provision, Mr. Mahai argues that CJ § 12-202 is unconstitutional because it “confers final jurisdiction on the Court of Special Appeals” by “prevent[ing] a case from being reviewed by” this Court. Mr. Mahai further argues that “[t]he denial of an application for leave to appeal operates, for all intents and purposes as an affirmance of the lower court’s decision.” Thus, in reading Article IV, §§ 14A and 15 together, Mr. Mahai contends that by denying an application for leave to appeal, the Court of Special Appeals is exercising final appellate jurisdiction by entering a final and conclusive judgment that is unreviewable by this Court. Accordingly, Mr. Mahai asks this Court to reverse the Court of Special Appeals’ denial of his application for leave to appeal.2 Conversely, the State of Maryland, Respondent, argues that CJ § 12-202 is constitutional under both Article IV, §§ 14A and 15. Article IV, § 14A allowed the creation 2 Mr. Mahai additionally contends that the Court of Special Appeals’ practice to deny applications for leave to appeal with the simple statement indicating the petition for postconviction relief has been read, considered and denied is unconstitutional under Article IV, § 15, which states “an opinion, in writing, shall be filed” in every case heard by either this Court or an “intermediate court of appeal[.]” Md. Const. art.

IV, § 15. Because this is not a case on the merits, but instead an application for leave to appeal, the Court of Special Appeals denies the application by order as provided for under the Maryland Rules. Md. Rule 8-204(f) (“On review of the application, any response, the record, and any additional information obtained pursuant to section (e) of this Rule, without the submission 12 of multiple intermediate courts by the General Assembly as it saw fit, although the General Assembly has only created one intermediate court—the Court of Special Appeals. The State maintains that the use of the word “intermediate” as a qualifier to both “courts” and “appellate jurisdiction” in Article IV, § 14A was merely a clarifying term to distinguish any new appellate courts from the existing Court of Appeals.

Additionally, as evidenced by its use of the term “intermediate” to describe both courts and jurisdiction, the State argues the term “intermediate” in “intermediate appellate jurisdiction” does not provide for a substantive limit on the Court of Special Appeals’ jurisdiction, but instead merely provides consistency and clarity. Moreover, the State argues that the clause “the judgment of the Court of Appeals shall be final and conclusive” in Article IV, § 15 sets out a restriction on the General Assembly preventing the establishment of any “other superior court of appellate jurisdiction[.]” Hammond v. Ridgely’s Lessee, 5 H. & J. 245, 269 (1821). Likewise, the “final and conclusive” reference in Article IV, § 15 indicates that this Court’s decisions are the “law of the case” and as such are binding on the courts below. See Chesapeake & C.B.R. Co. v. Richfield Oil Corp. of N.Y., 180 Md. 192, 194 (1942).

Thus, the State argues that Article IV, § 15 “spells out the consequence of t[his] Court entering judgment, not of briefs or the hearing of argument, the Court shall . . . deny the application . . . . The Clerk of the Court of Special Appeals shall send a copy of the order disposing of the application to the clerk of the lower court.”). 13 when t[his] Court must, or should be able to, review a case to enter judgment in the first place.” The State further emphasizes that criminal defendants do not possess a constitutional right of appeal, and instead “the right to seek appellate review is statutory; the Legislature can provide for, or preclude, the right of appeal.” Fuller v. State, 397 Md. 372, 382 (2007) (citations omitted). Here, the State notes that Maryland’s Uniform Postconviction Procedure Act denies postconviction petitioners a plenary right of appeal and instead provides that “a person aggrieved by the order . . . may apply to the Court of Special Appeals for leave to appeal the order.” Md. Code (2001, 2018 Repl. Vol.), Criminal Procedure (“CP”) § 7-109(a).

Additionally, the State notes that the Court of Special Appeals’ decision to grant or deny an application for leave to appeal is unreviewable by this Court pursuant to CJ § 12- 202. However, the State maintains that this Court has narrowly construed CJ § 12-202 by stating, “although we may not review the Court of Special Appeals’ exercise of discretion in granting the State’s application for leave to appeal, we are authorized to review that court’s decision on the merits remanding the case to the trial court.” Grayson v. State, 354 Md. 1, 11 (1999) (quoting Williams v. State, 292 Md. 201 , 210–11 (1981)). The State argues that the Court of Special Appeals’ denial of Mr. Mahai’s application for leave to appeal was not a merits determination, but instead merely established Mr. Mahai was not allowed an appeal by law. In sum, the State asserts that Mr. Mahai has failed to carry his burden to extinguish all “reasonable doubt” about the constitutionality of CJ § 12-202, and therefore asks this 14 Court to dismiss this appeal for lack of subject matter jurisdiction or, alternatively, to affirm the order of the Court of Special Appeals denying Mr. Mahai’s application for leave to appeal.3 B. Analysis.

When reviewing a statute for constitutionality, “[w]e begin with a presumption that the statute is constitutional, and the burden rests on Petitioner to show why that is not the case.” Walker, 432 Md. at 626 . “We are reluctant to find a statute unconstitutional if, ‘by any construction, it can be sustained.’” Galloway, 365 Md. at 611 (quoting Beauchamp v. Somerset Cty. Sanitary Comm’n, 256 Md. 541, 547 (1970)). A “[r]easonable doubt in [a statute’s] favor is enough to sustain it.” Beauchamp, 256 Md. at 547 (quoting Pitts v. State Bd. of Exam’rs of Psychologists, 222 Md. 224, 227 (1960)). “The Court will not denounce a statute as void on the ground that the lawmaking power has violated the Constitution, except when such violation is clear and unmistakable.” Kirkwood v. Provident Sav. Bank of Balt., 205 Md. 48, 59 (1954). 3 In his brief to this Court, Mr. Mahai additionally argues that he received ineffective assistance of counsel when his trial counsel failed to object to jury instructions regarding reasonable doubt, failed to object to voir dire questions that shifted the burden of determining bias to the venirepersons, and failed to file a motion for modification of sentence and a motion for sentence review.

In turn, the State contends that the Court of Special Appeals soundly exercised its discretion in denying Mr. Mahai’s application for leave to appeal. The State argues that Mr. Mahai’s appellate counsel did not supply the requisite record to the Court of Special Appeals, Mr. Mahai did not properly allege prejudice, and Mr. Mahai did not properly challenge the postconviction court’s finding of fact that his trial counsel was unaware of his desire to file post-trial sentencing motions. We decline to delineate these arguments further because we hold that CJ § 12-202 is constitutional and therefore do not reach these issues. 15 Here, Mr. Mahai challenges the constitutionality of CJ § 12-202, which lists five statutory exceptions to the broad authority of this Court to grant a writ of certiorari “in any case or proceeding pending in or decided by the Court of Special Appeals” codified at CJ § 12-201. Md. Code (1973, 2020 Repl.

Vol.), CJ § 12-201. CJ § 12-202 provides: A review by way of certiorari may not be granted by the Court of Appeals in a case or proceeding in which the Court of Special Appeals has denied or granted: (1) Leave to prosecute an