McGhee v. State

Antonio McGhee v. State of Maryland, No. 64, September Term, 2021. Opinion by Biran, J. CRIMINAL LAW – INEFFECTIVE ASSISTANCE OF COUNSEL – “CSI-EFFECT” VOIR DIRE QUESTION – During jury selection at Petitioner’s 2007 murder trial, Petitioner’s attorney did not object to a voir dire question that asked: “Does any member of this panel believe that the State has got to present fingerprint evidence, DNA, blood sample evidence, ballistic evidence, any scientific evidence in order to convince you of the defendant’s guilt? In other words, do you think the State has a requirement to do that in all cases?” The jury found Petitioner guilty. In a trilogy of cases that the Court of Appeals decided in the years following Petitioner’s trial, the Court held that so-called “CSI-effect” voir dire questions and similar jury instructions can improperly intrude on the province of the jury.

Charles v. State, 414 Md. 726 (2010); Atkins v. State, 421 Md. 434 (2011); Stabb v. State, 423 Md. 454 (2011). In 2014, Petitioner filed a post-conviction claim alleging that his trial counsel provided ineffective assistance of counsel by not objecting to the CSI-effect voir dire question at his trial. The Court of Appeals held that, under the prevailing professional norms that existed in 2007, defense counsel’s failure to object to a CSI-effect voir dire question did not render counsel’s performance constitutionally deficient under Strickland v. Washington, 466 U.S. 668 (1984). The Court declined to address the retroactivity of Charles, Atkins, and Stabb in determining whether counsel’s conduct was objectively unreasonable, because Strickland requires a post-conviction court to assess an attorney’s performance based on the prevailing professional norms at the time of the contested conduct.

Cases that are decided after a defendant’s trial do not shed light on the professional norms that existed at the time of the defendant’s trial. Circuit Court for Prince George’s County Case No.: CT07-1096X Argued: September 12, 2022 IN THE COURT OF APPEALS OF MARYLAND No. 64 September Term, 2021 ANTONIO MCGHEE v. STATE OF MARYLAND Fader, C.J. Watts Hotten Booth Biran Gould Eaves, JJ. Opinion by Biran, J. Filed: October 24, 2022 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2022-10-24 11:21-04:00 Suzanne C. Johnson, Clerk This case arises from a post-conviction court’s grant of a new trial to Petitioner Antonio McGhee based on ineffective assistance of counsel. In December 2007, a jury in the Circuit Court for Prince George’s County convicted McGhee of the murder of Keith Dreher.

The basis of McGhee’s ineffective assistance of counsel claim is his counsel’s failure to object to what courts and commentators have called a “CSI-effect” voir dire question. The “CSI effect” describes the theorized impact of television crime scene dramas on jurors. The theory suggests that, based on the proliferation of programs such as CSI, jurors in criminal cases now expect the prosecution to produce DNA evidence and/or other forensic evidence to prove a defendant’s guilt, and that juries are prone to wrongfully acquit criminal defendants where the prosecution does not produce such evidence. See, e.g., Robinson v. State, 436 Md. 560 , 570 n.11 (2014) (citing Donald E. Shelton, Juror Expectations for Scientific Evidence in Criminal Cases: Perceptions and Reality About the ‘CSI Effect’ Myth, 27 T.M. COOLEY L. REV. 1, 3 (2010)).

In 2010 and 2011 – more than two years after McGhee’s trial – this Court considered three cases related to the CSI effect, and held in each that a CSI-effect message from the bench constituted reversible error. See Charles v. State, 414 Md. 726 (2010); Atkins v. State, 421 Md. 434 (2011); Stabb v. State, 423 Md. 454 (2011). One of the questions before this Court is whether to apply these three cases retroactively in the context of an ineffective assistance of counsel claim. In Strickland v. Washington, the Supreme Court set out the controlling test for evaluating an ineffective assistance of counsel claim under the Sixth Amendment. 466 U.S. 668 (1984).

The Strickland test requires a petitioner claiming ineffective assistance of counsel to make two showings. First, the petitioner must show that counsel’s performance was deficient. Id. at 687 . “This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. Second, “the defendant must show that the deficient performance prejudiced the defense.” Id.

Under Strickland, in considering the first “performance” prong of the test for ineffective assistance, we are bound to evaluate defense counsel’s conduct according to professional norms that existed at the time of the contested action (or inaction). Id. at 689 . This analysis precludes us from evaluating counsel’s conduct based on law that did not exist at the time. Thus, we do not assess counsel’s performance at McGhee’s trial as if it occurred after this Court decided Charles, Stabb, and Atkins.

Under the professional norms that existed at the time of McGhee’s trial, defense counsel’s failure to object to a CSI-effect voir dire question did not render her performance constitutionally deficient. I Background A. Maryland Jurisprudence Concerning the “CSI Effect” 1. CSI-Effect Jury Instructions The term “CSI effect” emerged in 2002. Robinson, 436 Md. at 570 .

Due to the popularity of forensic crime scene television series such as CSI: Crime Scene 2 Investigation,1 commentators speculated that such programs may heighten juror expectations for forensic evidence. Id. at 570-71 (citing Jenny Wise, Providing the CSI Treatment: Criminal Justice Practitioners and the CSI Effect, 21 CURRENT ISSUES CRIM. JUST. 383, 383-84 (2010); Simon A. Cole & Rachel Dioso-Villa, Investigating the ‘CSI Effect’ Effect: Media and Litigation Crisis in Criminal Law, 61 STAN. L. REV. 1335, 1338-39 (2009)).

Studies that considered whether viewing CSI-type programs affected jurors’ verdicts yielded inconclusive results. See Robinson, 436 Md. at 571-72 . Nevertheless, some courts began giving jury instructions to guard against a potential CSI effect. These were sometimes referred to as “anti-CSI effect” instructions.

See id. at 572 . The advent of these jury instructions generated unique questions about the interaction of pop culture, the role of the jury, and the State’s burden of proof, prompting consideration in Maryland’s appellate courts. In 2007, the Court of Special Appeals considered for the first time whether the giving of a CSI-effect jury instruction constituted reversible error – specifically, whether the instruction relieved the State of its burden of proof. Evans v. State, 174 Md. App. 549 1 CSI: Crime Scene Investigation aired on CBS from 2000 through 2015.

Set in Las Vegas, CSI was immensely popular and spawned several spinoff series, including CSI: Miami, CSI: NY, and CSI: Cyber. See CSI: Crime Scene Investigation, Editors of Encyclopaedia Britannica, BRITANNICA, available at https://perma.cc/WA85-DK3A; see also Atkins v. State, 421 Md. 434, 457-58 (Harrell, J., concurring) (observing that the “success of ‘forensic’ dramas … skyrocketed in 2000 with the debut of CSI: Crime Scene Investigation, referred to as ‘the most popular television show in the world’ at one time” and noting that, in a 2006 Nielsen rating, 30 million people watched CSI in one night; 70 million people watched one of the three CSI shows then in production; and 40 million people watched two other forensic dramas, Without a Trace and Cold Case) (citations omitted). In 2021, the Las Vegas iteration of the CSI franchise returned to television as CSI: Vegas. See CSI: Vegas, CBS, available at https://perma.cc/B9F6-ENEJ. 3 (2007).

The State charged Evans and another man with possession and distribution of heroin after conducting an undercover “buy bust” operation. Id. at 552-53 . At trial, Evans’s attorney cross-examined the investigating detective concerning specific investigative techniques that the detective had not used, including the failure to capture the drug transaction through the use of video or audio recording equipment. Id. at 562 .

This line of cross-examination prompted the trial court to instruct the jury as follows: During this trial, you have heard testimony of witnesses and may hear argument of counsel that the State did not utilize a specific investigative technique or scientific test. You may consider these facts in deciding whether the State has met its burden of proof. You should consider all of the evidence or lack of evidence in deciding whether a defendant is guilty. However, I instruct you that there is no legal requirement that the State utilize any specific investigative technique or scientific test to prove its case.

Your responsibility as jurors is to determine whether the State has proven, based on the evidence, the defendants’ guilt beyond a reasonable doubt. Id. Evans’s trial counsel did not object to the giving of this instruction. Id. at 564-65 .

In his closing argument, Evans’s counsel highlighted the detective’s failure to record the alleged transaction. See id. at 562-63 . The co-defendant’s attorney echoed this point in his closing argument, also noting the lack of forensic evidence: “You have a situation where there are absolutely no scientific tests that implicate my client in any way. There’s no audio.

There’s no video. There’s no fingerprints. There is nothing.” Id. at 563-64 . On appeal, Evans argued that the instruction concerning specific investigative techniques and scientific tests improperly relieved the State of its burden to prove his guilt beyond a reasonable doubt.

Id. at 562 . Because Evans had failed to preserve this issue through objection in the trial court, the Court of Special Appeals held that it was precluded 4 from considering it. Id. at 566 . In dicta, the intermediate appellate court noted that the jury instruction was a correct statement of the law and that it did not relieve the State of its burden of proof.

Id. at 570 . However, the court “stress[ed] that the salutary effect of the instruction is found in the advisement that the absence of such evidence should be factored into the juror’s determination of whether the State has shouldered its burden if, and only if, the absence of such evidence, itself, creates reasonable doubt.” Id. at 571 . The court continued: “The risk is greatest that such an instruction will run afoul of the prohibition against relieving the State of its burden where the instruction is predominant in the overall instructions and its relation to the reasonable doubt standard unclear.” Id. Thus, the court advised, “the preferable practice is for the … instruction to be promulgated in conjunction with the explication of the State’s burden to prove the defendant guilty beyond a reasonable doubt.” Id.

Between 2007 and 2011, no Maryland appellate court addressed the CSI effect in the context of a jury instruction.2 In 2011, this Court considered such an instruction for the first time in Atkins v. State, 421 Md. at 434 . Atkins was charged with three counts of assault after he was involved in an altercation during which he stabbed three people. See id. at 438-39 . Three days after the incident, police executed a search warrant at Atkins’s home and found a large, non-foldable “Rambo-type” knife in Atkins’s bedroom.

Id. at 439 , 439 n.3. Police did not perform any scientific or forensic tests on the knife, and there was no witness testimony at trial linking that knife to the stabbings. Id. at 439 . Nevertheless, the 2 As discussed below, in 2010 this Court considered a CSI-effect voir dire question in Charles v. State, 414 Md. 726 (2010). 5 State told the jury in its opening statement that Atkins used the knife found in his bedroom in the stabbings.

Id. at 439, 439 n.4. During cross-examination of a detective who found the knife in Atkins’s bedroom, defense counsel probed the lack of DNA testing conducted on the knife. Id. at 440. In his defense case, Atkins testified that, as he was being punched and kicked during the fight, he took a pocketknife out of his pocket, opened it, and swung it at his attackers in self-defense.

Id. at 438-39. The trial court granted the State’s request for a CSI-effect jury instruction over defense objection. The court instructed the jury: During this trial, you have heard testimony of witnesses and may hear argument of counsel that the State did not utilize a specific investigative technique or scientific test. You may consider these facts in deciding whether the State has met its burden of proof.

You should consider all of the evidence or lack of evidence in deciding whether the defendant is guilty. However, I instruct you that there is no legal requirement that the State utilize any specific investigative technique or scientific test to prove its case. Your responsibility as jurors is to determine whether the State has proven based upon the evidence the defendant’s guilt beyond a reasonable doubt. Id. at 441-42 (emphasis omitted).

The jury convicted Atkins of the assault charges, and the Court of Special Appeals affirmed the convictions, discerning no error in the CSI-effect jury instruction. See id. at 442. This Court reversed, concluding that Atkins’s case was distinguishable from Evans. We observed that, in Evans, the defense “distorted the law” through its extensive cross-examination concerning the lack of video or audio evidence of the drug purchase, id. at 451, and through its “robust and vehement closing argument” in which it improperly suggested that the prosecution was required to produce such evidence.

Id. at 450 (quoting Evans, 174 Md. App. at 570 ). Whereas, in Evans, the defense’s cross-examination and 6 closing argument made a curative jury instruction proper, see id. at 450-51, in Atkins defense counsel “merely pointed out” during cross-examination the lack of specific forensic tests, which made a curative instruction unnecessary. Id. In addition, the instruction in Evans was improper because it invaded the province of the jury, suggesting the inferences they should draw from the State’s failure to test the recovered knife for DNA evidence.

Id. at 453-54. However, the Court stated that its “conclusion that the instruction as given was invalid [was] based on the particular facts in this case,” and explained that it was “not hold[ing] that an investigative techniques instruction would never be proper.” Id. at 454. Consistent with Evans, this Court observed that “the key to producing a valid jury instruction is ensuring that the State is properly held to its burden, and any instruction regarding what the State must produce in proving its case must be properly related to the reasonable doubt standard.” Id. A few months later, in Stabb v. State, this Court again considered a CSI-effect jury instruction case, and again held that the giving of the instruction constituted reversible error. 423 Md. at 471-72 .

Stabb was charged with a third-degree sex offense involving a minor. See id. at 457 . After the alleged assault was reported to law enforcement, the authorities did not refer the victim for a Sexual Assault Forensics Exam (“SAFE”). Id. at 458-59 .

At trial, Stabb’s defense counsel “argued properly and without undue emphasis the lack of corroborating physical evidence of the crime, and questioned [two detectives] as to the likelihood of the existence of such evidence and why a SAFE was not performed, but did not ‘harp’ impermissibly on the lack of physical evidence in its case-in-chief or during 7 closing arguments.” Id. at 471 . Nevertheless, the trial court issued a preemptive CSI-effect jury instruction. Id. at 471-72 . This Court held that the use of a preemptive CSI-effect instruction was improper, again distinguishing Evans.

See id. at 471 . We noted that, after defense counsel’s cross-examination of the detectives, “[t]he State responded, during recross-examination of witnesses and in closing arguments, to defense counsel’s implication regarding the lack of a SAFE, i.e., why a SAFE was not administered and the unlikelihood that a SAFE, had it been administered, would have yielded testable DNA or fingerprints.” Id. at 472 . We observed that “[r]ebuttal by the State was the proper approach.” Id. However, “[w]hen the trial judge injected the pertinent instruction into the jury’s calculus, it had more force and effect than if merely presented by counsel, and could have influenced impermissibly the drawing by the jury of inferences regarding the absence of physical evidence.” Id.

(internal quotation marks and citation omitted). We concluded: In giving the “anti-CSI effect” instruction to the jury, the trial court directed effectively the jurors not to consider the absence of a SAFE or corroborating physical evidence. The trial court invaded impermissibly the province of the jury deliberations with the given “anti-CSI effect” instruction under the circumstances. The “anti-CSI effect” jury instruction given, in the circumstances of this case, was improper because it relieved the State of its burden to prove Stabb was guilty beyond a reasonable doubt, invaded the province of the jury, and, thus, violated Stabb’s constitutional right to a fair trial.

Id. We warned prosecutors that the use of a CSI-effect jury instruction is “fraught with the potential for reversible error,” id. at 473 , and advised that it should be “confined to situations where it responds to correction of a preexisting overreaching by the defense, i.e., a curative instruction.” Id. 8 Most recently, this Court decided Taylor v. State, 473 Md. 205 (2021). In Taylor, we held that the trial court erred by giving a CSI-effect jury instruction sua sponte in anticipation of a potential defense objection. Id. at 222, 231 .

Taylor involved a complicating factor: Although Taylor’s trial had occurred in 2008, no timely appeal was filed on his behalf. Id. at 224 . A post-conviction court granted Taylor relief in the form of a belated appeal more than eight years later. Thus, the case came to this Court as a direct appeal, rather than on collateral review.

See id. at 224-25 . One of the questions presented to us in Taylor was which law to apply: the law as it existed in 2008 at the time of Taylor’s trial (i.e., only the dicta from Evans) or the law as it existed at the time we were considering his belated appeal (i.e., Atkins and Stabb). We did not reach this question, however, because we held that either way the jury instruction in Taylor’s trial was improper. Id. at 233-34 . 2.

CSI-Effect Voir Dire Questions An alternative iteration of the CSI effect emerged in Maryland courtrooms concerning voir dire questions. In 2010 in Charles v. State, the State convicted two defendants of second-degree murder and use of a handgun in the commission of a felony or crime of violence. 414 Md. 726 (2010). During voir dire, over defense counsel’s objection, the trial judge asked the jurors: “[I]f you are currently of the opinion or belief that you cannot convict a defendant without ‘scientific evidence,’ regardless of the other evidence in the case and regardless of the instructions that I will give you as to the law, please rise.” Id. at 730 (emphasis deleted). This Court held that the trial court erred by using non-neutral language that suggested the only option was to convict the defendant, without mention of the option to 9 acquit.

Id. at 738 ; see also McFadden v. State, 197 Md. App. 238, 250-51 (2011) (holding non-neutral CSI-effect voir dire question deprived defendant of right to fair and impartial jury), abrogated in part on other grounds by State v. Stringfellow, 425 Md. 461 (2012). Charles did not focus on the appropriateness of the CSI-effect message when posed to the jury pool during voir dire. Rather, it focused on the appropriateness of non-neutral language in comments from the bench. See Charles, 414 Md. at 733 .

In 2018, the Court of Special Appeals considered a CSI-effect voir dire question in the context of an ineffective assistance of counsel claim. State v. Armstead, 235 Md. App. 392 (2018). After reflecting on Evans, Charles, Atkins, and Stabb, the intermediate appellate court concluded that trial counsel’s failure to object to a CSI-effect voir dire question did not amount to ineffective assistance of counsel. The Armstead Court reasoned that, at the time of Armstead’s trial in 2009, CSI-effect voir dire was permissible, and arguably even “favored,” under Maryland common law (presumably referring to Evans).

Id. at 406 . That being the case, it could not be said that Armstead’s trial counsel fell short of the professional norms that prevailed at the time. See id. at 417 (“It is unreasonable to require trial counsel to see the change that remained beyond the horizon.”). Equipped with an understanding of the development of CSI-effect case law in Maryland, we turn now to the CSI-effect voir dire question that the trial court asked in the present case.

B. McGhee’s Trial and the Contested Voir Dire Question McGhee’s murder trial went forward in December 2007. During voir dire, the trial court asked the potential jurors the following question related to the CSI effect: 10 Does any member of this panel believe that the State has got to present fingerprint evidence, DNA, blood sample evidence, ballistic evidence, any scientific evidence in order to convince you of the defendant’s guilt? In other words, do you think the State has a requirement to do that in all cases? McGhee’s attorney did not object to this question.

After selection of the jurors, the State presented evidence that, on the evening of March 17, 2007, Keith Dreher was killed by a gunshot to the head outside a Papa Johns restaurant in Oxon Hill, Maryland. Detective Paul Dougherty testified that after the shooting, the Assistant Manager of the restaurant, Jerrone Joyner,3 gave a statement to him, in which Jerrone said that he saw the shooter and the victim in the restaurant for approximately 20 minutes prior to the shooting. He also told Detective Dougherty that he would be able to identify the shooter if he were shown a picture of him. One month later, Detectives Andre Brooks and Michael Delaney met with Jerrone and presented him a photo array.

When Jerrone saw McGhee’s photograph he asked, “[w]as that the guy?” Detective Delaney responded, “I couldn’t tell you that. I wasn’t there.” The detectives testified that Jerrone then identified McGhee and said he was “a hundred percent” certain that McGhee was the shooter. Jerrone’s testimony at trial differed from that of Detectives Dougherty, Brooks, and Delaney. Jerrone recalled giving a statement to Detective Dougherty the night of the shooting, in which he described the shooter.

He recalled telling Detective Dougherty that it was possible he could identify the shooter, but he did not recall telling police that the 3 Because two of the witnesses share the last name Joyner, we will refer to them by their first names. We mean no disrespect. 11 shooter was in the restaurant before the shooting. Additionally, while Jerrone remembered identifying McGhee to police, he testified that he only did so because he “knew the other guys” and did not know McGhee. He also disputed that he made the identification with certainty.

While acknowledging that he saw the barrel of the gun, he said that he did not get a good look at the shooter and did not see the shooting. Two other witnesses who were at the Papa Johns restaurant at the time of the shooting – Shamell Joyner and Demetrius Young – knew McGhee personally. Shamell, who was working at the Papa Johns on the night of the murder, testified that he saw McGhee in the restaurant shortly before the shooting. He recalled hearing an argument going on outside before the gunshot, but he did not know who was arguing or what the argument was about.

Young testified that he was at the Papa Johns restaurant the night of the shooting waiting for Shamell to get off work, when he saw McGhee enter the restaurant. Young saw McGhee ask Dreher for a cigarette before Dreher went outside. He heard a gunshot two minutes later. On March 21, 2007, Shamell accompanied Detective Delaney to Martin Luther King Elementary School in Washington, D.C., where he identified McGhee.

After members of the Prince George’s County Police Department warrant squad identified themselves to McGhee as police, McGhee ran from them. Detective Wayne Martin saw McGhee running into a wood line with a gun protruding from McGhee’s clothing. Martin testified that he lost sight of McGhee for approximately 15 to 30 seconds during the chase. 12 A short time later, Martin apprehended McGhee. McGhee did not have a gun on his person at that time.

An evidence technician for the Prince George’s County Police Department testified that he recovered a loaded, “reasonably clean” sawed-off shotgun from underneath leaves along a fence at the rear of the school on March 21, 2007. Although the gun was submitted for DNA analysis, there was not sufficient genetic material on it from which to develop a genetic profile. Similarly, latent fingerprints lifted from the weapon did not contain enough characteristics for an examination to be conducted. However, Detective Martin testified that the recovered firearm appeared to be the gun he saw in McGhee’s possession while McGhee was running.

Susan Lee, a Prince George’s County Police Department firearms examiner, testified that plastic wadding and shell fragments recovered from Dreher’s body were consistent with material contained within the cartridges that were loaded in the shotgun at the time it was recovered on March 21; however, she could not conclude that the recovered shotgun was the murder weapon. Finally, the State presented evidence of incriminating statements McGhee made to police officers on April 5, 2007. Detective Delaney testified that, in the course of McGhee’s swabbing for DNA on that date, he asked McGhee if he had an attorney. According to Delaney, McGhee said his family would be wasting their money on an attorney because the police had the “pump.” Delaney understood this to mean a sawed-off shotgun.

Additionally, Delaney testified that McGhee asked about cooperating with the investigation and that Delaney said he could not make any promises. 13 McGhee presented an alibi witness, Dayontae Duncan, who testified that McGhee was with him at a party on the evening of the shooting and that they spent the night at Duncan’s home. McGhee also testified that he was with Duncan at the time of the shooting and was not at the Papa Johns restaurant that night. He testified that he ran from the police on March 21, 2007, because police had “been coming around our neighborhood harassing young dudes because of the colors we wear,” and he suspected police thought he was affiliated with a gang. He admitted telling police at the time of the DNA swabbing that he thought his family was hiring an attorney, but he denied saying the attorney was a waste of money because the police had “the pump,” and he denied making any other statements to police during that interaction.

The jury found McGhee guilty of first-degree murder, and he was sentenced to life in prison on January 18, 2008. The Court of Special Appeals affirmed McGhee’s conviction on direct appeal, McGhee v. State, Sept. Term, 2007, No. 2827, and this Court denied McGhee’s petition for certiorari. McGhee v. State, 410 Md. 561 (2009). C. Post-Conviction Proceeding On June 10, 2014, McGhee filed a pro se petition for post-conviction relief.

Defense counsel later supplemented this petition with additional issues. McGhee contended that he received ineffective assistance of counsel based on: 1. trial counsel’s failure to object to the trial court’s “CSI-effect” voir dire question; 2. appellate counsel’s failure to