Mendes v. State

RAYMOND G. THIEME, Jr., Judge, Ret’d, Specially Assigned. In this appeal, we are asked to determine whether the Circuit Court for Anne Arundel County (Heller, J.) erred by denying post-conviction relief to Fortunato J. Mendes, the appellant, on the ground that his trial counsel was ineffective. Appellant was convicted by a jury on September 1, 1989, of first degree murder and use of a handgun in the commission of a crime of violence. He is currently serving concurrent prison sentences of life without the possibility of parole for the murder conviction and 15 years for the handgun conviction.

An earlier, direct appeal to this Court was unsuccessful. 1 On April 21, 1997, appellant petitioned the circuit court for post-conviction relief. 2 After a six-day hearing, the court denied relief. Appellant applied for leave to appeal to this Court, and we granted the application on June 20, 2001. ²⁸ QUESTIONS PRESENTED Appellant now presents the following questions: I. Whether the post-conviction court erred in concluding that [appellant's trial counsel did not provide constitutionally ineffective assistance at the suppression hearing.

II

Whether the post-conviction court erred in concluding that [appellant's trial counsel did not provide constitutionally ineffective assistance by failing to call an essential defense witness....

III

Whether the post-conviction court erred in concluding that [appellant’s trial counsel did not provide constitutionally ineffective assistance in failing to properly investigate an alibi witness before presenting the witness to the jury.

IV

Whether the post-conviction court erred in concluding that [appellant’s trial counsel did not provide constitutionally ineffective assistance in regard to [appellant’s appearance before the jury in leg irons, shackles, and chains. V. Whether the post-conviction court erred in concluding that the cumulative effect of all the errors by [appellant’s trial counsel did not collectively prejudice [appellant sufficient[ly] to deny him constitutionally effective assistance. We answer all five questions in the negative and affirm the judgment of the post-conviction court. FACTS On June 15, 1988, appellant was a practicing attorney in Washington, D.C. He was also scheduled to go on trial the next day, June 16, 1988, for distribution of cocaine.

The victim, Davide Diggs, 3 was to have been a witness against him. ²⁹ A gunman ambushed Diggs on the morning of June 15, 1988, as Diggs left his home in the Oyster Harbor area of Anne Arundel County to go to work. The gunman chased Diggs a short distance, then shot him three times in the back and once in the arm. Diggs’s mother, Madeline Stokes, heard Diggs shout, “Oh, no,” and then heard shots. Stokes looked out the window in time to see a man chasing her son across the yard.

Stokes only saw the man from behind. Stokes ran outside to her son, noticing that the assailant was gone. Stokes asked Diggs who had shot him, and Diggs replied “the lawyer.” Stokes asked Diggs if he meant “Fortu-nato, the lawyer,” and he answered “yes.” With varying degrees of certainty, five other witnesses identified appellant as someone they had seen at or near the scene of the shooting. STANDARD OF REVIEW It is well established that the right to counsel guaranteed by the Sixth Amendment to the United States Constitution, and made applicable to the states through the Due Process Clause of the Fourteenth Amendment, encompasses “ ‘the right to the effective assistance of counsel.’ ” Strickland v. Washington, 466 U.S. 668, 686 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984) (citations omitted; emphasis added).

See also Redman v. State, 363 Md. 298, 309-10 , 768 A.2d 656 , cert. denied, -U.S. -, 122 S.Ct. 140 , 151 L.Ed.2d 92 (2001); Oken v. State, 343 Md. 256, 283-84 , 681 A.2d 30 (1996); State v. Jones, 138 Md.App. 178, 204-05 , 771 A.2d 407 , cert. granted, 365 Md. 266 , 778 A.2d 382 (2001); Cirincione v. State, 119 Md.App. 471, 484 , 705 A.2d 96 (1998). “The benchmark for judging any claim of ineffective assistance must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686 , 104 S.Ct. 2052 . ³⁰ In Strickland, 466 U.S. at 687 , 104 S.Ct. 2052 , the Supreme Court established a two-pronged test for determining whether counsel’s assistance was so defective as to require reversal. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense.

This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable. “Maryland has consistently applied the Strickland test in deciding whether counsel has rendered constitutionally ineffective assistance.” Jones, 138 Md.App. at 205 , 771 A.2d 407 . See also Johnson v. State, 142 Md.App. 172 , 788 A.2d 678 (2002). As this Court has summarized: To establish that trial counsel’s representation “was so deficient as to undermine the adversarial process,” ... a defendant must show that: (1) under the circumstances, counsel’s acts resulted from unreasonable professional judgment, meaning that “counsel’s representation fell below an objective standard of reasonableness,” and (2) that the defendant was prejudiced, because “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Jones, 138 Md.App. at 206 , 771 A.2d 407 (citations omitted; emphasis in original). “To establish the requisite degree of prejudice in Maryland, the defendant must demonstrate a ‘substantial possibility that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Id. at 207-08 , 771 A.2d 407 (citation omitted). “[A] ‘ “proper analysis of prejudice” ’ includes consideration of ‘ “whether the result ... was fundamentally unfair or unreliable.” ’ ” Id. at 208, 771 A.2d 407 (citations omitted). ³¹ “Ineffectiveness is not a question of ‘basic, primary, or historical fae[t]’....

Rather, ... it is a mixed question of law and fact.” Strickland, 466 U.S. at 698 , 104 S.Ct. 2052 (citations omitted). In reviewing a decision regarding a claim of ineffective assistance of counsel, an appellate court “will not disturb the factual findings of the post-conviction court unless they are clearly erroneous.” Wilson v. State, 363 Md. 333, 348 , 768 A.2d 675 (2001). But, a reviewing court must make an independent analysis to determine the “ultimate mixed question of law and fact, namely, was there a violation of a constitutional right as claimed.” ... In other words, the appellate court must exercise its own independent judgment as to the reasonableness of counsel’s conduct and the prejudice, if any.... “Within the Strickland framework, we will evaluate anew the findings of the lower court as to the reasonableness of conduct and the prejudice suffered....

As a question of whether a constitutional right has been violated, we make our own independent analysis by reviewing the law and applying it to the facts of the case.” Jones, 138 Md.App. at 209 , 771 A.2d 407 (citations omitted). Like the post-conviction court, we keep in mind that, “[w]ith the benefit of hindsight, ... it is all too easy to mistake a sound but unsuccessful strategy for incompetency----” Cir-incione, 119 Md.App. at 485 , 705 A.2d 96 . “[F]or this reason, we ‘indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’ ” Id. (citation omitted). “Furthermore, our review of the Strickland elements of ineffective assistance need not be taken up in any particular order. In other words, we need not find deficiency of counsel in order to dispose of a claim on the grounds of a lack of prejudice.” Id. at 485-86, 705 A.2d 96 .

DISCUSSION I Motion to Suppress One day after the shooting, Detective Dirk Rinehart of the Anne Arundel County Police Department prepared a photo ³² array (“the first array”) depicting six persons, which he showed to several witnesses. This first array, comprised of black and white frontal and profile shots of each of the six persons, included year-old photos of appellant that the detective had obtained from another police department. Following appellant’s arrest, Detective Rinehart took a new photo of appellant and included it in a second photo array (“the second array”), which was comprised of color, frontal shots of six persons. The second array was shown to various witnesses as well. 4 Prior to trial, appellant moved to suppress evidence that several witnesses had selected appellant’s photo from one or both of the arrays as someone they had seen at or near the crime scene.

A hearing was held, and defense counsel argued that the identification procedure was suggestive in that: only six photos were used in each array; the complexions and ages of the persons in the arrays were dissimilar; the photo of appellant used in the first array was printed on newer paper than the other photos; the photo of appellant used in the second array had been published previously in a local newspaper and had been seen by at least some of the witnesses; and the photo of appellant used in the second array was “more distinctive” in color than the other photos. The court denied the motion. In petitioning for post-conviction relief, appellant posited that the police had shown both photo arrays to four of five witnesses whose trial testimony, with varying degrees of certainty, placed appellant at the crime scene. Appellant contended that his trial counsel’s assistance was ineffective in that counsel failed to argue that the identification procedure was suggestive or impermissibly suggestive in that (1) appellant was the only person depicted in both photo arrays, and (2) several witnesses saw only partial views of the suspect, and all the photos in the arrays “did not match the views the wit ³³ ness[es] allegedly had.” Appellant further argued that counsel was ineffective in failing to argue that the identifications made by the witnesses were unreliable.

The post-conviction court rejected appellant’s arguments. The court concluded in a “Memorandum Opinion and Order” that the additional arguments as to suggestiveness “would not have altered the trial court’s determination that the photo array was not impermissibly suggestive.” It explained that, in the spectrum of the totality of the circumstances, the trial court expressed no hesitation with regard to the suppression issue, so that even with the additional arguments postured by Petitioner the trial court would, at most, have moved in the direction of suppression, but not enough to suppress the photo array. As to defense counsel’s failure to argue that the identifications were unreliable, the court stated: Although Petitioner correctly contends that trial counsel failed to argue that the State’s witnesses were unreliable thereby foreclosing the court’s ability to suppress the photo array, this error did not affect the court’s decision. The trial court found that “... with regard to the photos, I mean, there is nothing suggestive about those photos.” ...

With regard to the trial court’s ruling that there was no impermissible suggestiveness the further issue regarding the reliability of the witnesses is moot. The reliability issue is only reached if the court finds an impermissible suggestiveness in the photo array and the burden then switches to the State to show that the reliability of the witnesses overcomes this suggestiveness.... Therefore, the Court does not find that trial counsel was ineffective by failing to argue the reliability issue because the photo array would not have been suppressed irrespective of this argument.... Appellant now contends that, in reaching this conclusion, the post-conviction court “fail[ed] to properly apply controlling law in Maryland.” ³⁴ —Admissibility of Suggestive Pre-trial Identifications— There is no dispute that the Due Process Clause of the Fourteenth Amendment may, under certain circumstances, compel the exclusion of a pre-trial identification obtained by police.

In Webster v. State, 299 Md. 581, 600 , 474 A.2d 1305 (1984), in which two appellate challenges to police line-ups were consolidated, the Court of Appeals analyzed, inter alia, four Supreme Court decisions that dealt with judicial or extrajudicial identification procedures: Manson v. Brathwaite, 432 U.S. 98 , 97 S.Ct. 2243 , 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188 , 93 S.Ct. 375 , 34 L.Ed.2d 401 (1972); Simmons v. United States, 390 U.S. 377 , 88 S.Ct. 967 , 19 L.Ed.2d 1247 (1968); Stovall v. Denno, 388 U.S. 293 , 87 S.Ct. 1967 , 18 L.Ed.2d 1199 (1967). The Court of Appeals summarized: The [Supreme] Court now recognizes four degrees of “taint” on due process grounds with respect to an extrajudicial corporeal confrontation. The confrontation may be: (1) Suggestive, but permissibly so.... 5 (2) Impermissibly (unnecessarily) suggestive.... (3) So impermissibly suggestive as to give rise to a very substantial likelihood of misidentification....

(4) So impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.... (Citations omitted.) The Webster Court affirmed determinations by the trial courts that the line-ups in question were not in any way suggestive. See id. at 613, 620 , 474 A.2d 1305 . The Court of Appeals nevertheless went on to explain in dicta: With respect to a confrontation tainted to ³⁵ (1) the fourth degree (so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification): (a) judicial and extra-judicial identifications are per se to be excluded....

(2) the third degree (so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification): (a) extra-judicial identification to be per se excluded.... (b) judicial identification is admissible if “reliable.” ... (3) The second degree (impermissibly suggestive) and the first degree (suggestive, but permissibly so): (a) judicial and extra-judicial identifications are admissible if “reliable.” ... Id. at 601 , 474 A.2d 1305 (citations omitted).

Appellant maintains that, if trial counsel had made the additional arguments regarding suggestiveness, “the trial court would have found — -at the least — that [the] photo identification techniques were ‘permissibly suggestive,’ and likely would have found ‘impermissible suggestiveness.’ ” Based on Webster , appellant asserts that even a finding that an identification procedure was suggestive, but permissibly so, is “sufficient to trigger the reliability prong of the two-part test.... ” We are not convinced that the particular language in Webster on which appellant relies, to the effect that an extrajudicial identification that is permissibly suggestive is admissible only if reliable, reflects the current view of the Court of Appeals. While the Court has not expressly modified the language, it has implicitly suggested that the reliability of an extra-judicial identification procedure is not placed in issue unless the procedure was impermissibly or unnecessarily suggestive. In Jones v. State, 310 Md. 569, 577 , 530 A.2d 743 (1987), vacated and remanded on other grounds, 486 U.S. 1050 , 108 S.Ct. 2815 , 100 L.Ed.2d 916 (1988), the Court seemed to use the terms “suggestive” and “impermissibly suggestive” interchangeably. The Court explained: ³⁶ In Webster , we reviewed the law pertaining to suggestive pretrial identifications, noting that the cases establish a two-stage inquiry for due process challenges to extrajudicial identifications....

The first question is whether the identification procedure was impermissibly suggestive. ... If the out-of-court identification was not made under suggestive circumstances, the due process inquiry ends: both judicial and extrajudicial identification evidence is admissible.... If, on the other hand, the identification was tainted by suggestiveness the inquiry progresses to the second stage. Jones, 310 Md. at 577 , 530 A.2d 743 (emphasis added).

In Evans v. State, 304 Md. 487 , 499 A.2d 1261 (1985), the Court reviewed a contention that an in-court identification was tainted by an improper pre-trial identification that involved the display of a single photograph. The Court summarized the principles established by Manson, Biggers, Simmons, and Stovall , as analyzed in Webster , and stated: The initial determination to be made is whether the identification procedure was impermissibly suggestive. It is clear in this case that it was. The showing of a single photograph, under the circumstances shown by this record, was suggestive, and the State does not seriously argue to the contrary.

There were no exigent circumstances justifying the presentation of a single photograph rather than an appropriate array. Therefore, we next consider whether, under the totality of the circumstances, the identification was reliable. ... Evans, 304 Md. at 498 , 499 A.2d 1261 (emphasis added). Like the Court of Appeals in Jones and Evans , this Court has .explained that a determination as to the reliability of an extra-judicial identification need only be made if the identification is found to be impermissibly or unnecessarily suggestive.

In Thomas v. State, 139 Md.App. 188, 208 , 775 A.2d 406 (2001), aff'd, 369 Md. 202 , 798 A.2d 566 (2002), which involved a pretrial identification from a single photo, we stated: In determining the admissibility of an extrajudicial identification, such as a photo array, the defense has the initial ³⁷ burden of showing “some unnecessary suggestiveness” in the procedures employed by police. If the defense meets the burden, then the State must prove, by clear and convincing evidence, the existence of reliability in the identification that outweighs the corrupting effect of the suggestive procedure. In McDuffie v. State, 115 Md.App. 359, 366-67 , 693 A.2d 360 (1997), which involved a pre-trial identification from a show-up, we explained: In Maryland, a two-stage inquiry for challenging an out-of-court identification has been established. “The first question is whether the identification procedure was impermissi-bly suggestive,” and ‘suggestiveness’ “exists where ‘[i]n effect, the police repeatedly said to the witness, ‘This is the man.’ ’ ” [Jones, 310 Md. at 577 , 530 A.2d 743 ].... If we were to conclude the identification was “tainted by suggestiveness,” it would become necessary for us to assess “whether, under the totality of the circumstances, the identification was reliable.” [Jones, 310 Md. at 577 , 530 A.2d 743 ]....

(Emphasis in original.) In Conyers v. State, 115 Md.App. 114, 117-18 , 691 A.2d 802 (1997), which involved a pre-trial identification from two photo arrays, we quoted Simmons, 390 U.S. at 384 , 88 S.Ct. 967 , and summarized that “an excludable pretrial identification” is one that is “ ‘so [1] impermissibly [2] suggestive [3] as to give rise to a very substantial likelihood of irreparable misidentification.’ ” We explained: “Until a defendant establishes unper-missive suggestiveness in the first instance as a basis for presumptive exclusion, ... a court does not even inquire, by looking at the suggested reliability factors, into whether the State is entitled to an exemption from that presumptive exclusion.” Conyers, 115 Md.App. at 120 , 691 A.2d 802 . See also Graves v. State, 94 Md.App. 649, 681 , 619 A.2d 123 (1993) (holding that the trial court properly admitted evidence of a ³⁸ pre-trial identification from a photo array, and stating that “it is well-settled that the ‘defense has the initial burden of showing some unnecessary suggestiveness in the procedures employed by police,’ and that ‘[i]f and when a prima facie taint is evident, the State must prove by clear and convincing evidence the existence of reliability in the identification that outweighs the corrupting effect of the suggestive procedure’ ” (citation omitted)); rev’d on other grounds, 334 Md. 30 , 637 A.2d 1197 (1994); Loud v. State, 63 Md.App. 702, 706 , 493 A.2d 1092 (1985) (espousing identical principles in holding that pre-trial identification from photo array and line-up was admissible). Cf . Hopkins v. State, 352 Md. 146, 160-61 , 721 A.2d 231 (1998) (applying the two-pronged test where the challenge was to the relevancy of an identification by voice exemplar, and explaining that the first prong is whether the identification procedure was tainted by impermissible or undue suggestiveness, and the second prong is whether the identification was nevertheless reliable).

The two-pronged test applied by the Court of Appeals in Jones and Evans and applied consistently by this Court to determine the admissibility of an extra-judicial identification is in accord with the test applied by courts in various other jurisdictions. In United States v. Maguire, 918 F.2d 254, 263 (1st Cir.1990), the United States Court of Appeals for the First Circuit stated: In Simmons [ 390 U.S. 377 , 88 S.Ct. 967 ], the [Supreme] Court fashioned a two-pronged test for the exclusion of identifications based upon impermissibly suggestive photo arrays. The first prong involves determination of whether the identification procedure was impermissibly suggestive. If it was not, the court need proceed no further in its inquiry. ...

The second prong of Simmons , invoked only when a photospread has been deemed impermissibly suggestive, measures the reliability of the identification based on the totality of the circumstances.... ³⁹ (Emphasis added; citations omitted). Similarly, in State v. Humphrey, 789 S.W.2d 186, 190 (Mo.Ct.App.1990), the Court of Appeals of Missouri opined: A two step analysis is required to determine the admissibility of an out of court identification.... The first determination is whether the investigatory procedures employed by the police were impermissibly suggestive and, if so, then were so suggestive they created a “very substantial likelihood of an irreparable misidentiflcation at trial.” ... (Citations omitted.) See also United States v. Sanchez, 24 F.3d 1259, 1261 (10th Cir.1994) (regarding admissibility of identifications from photo arrays); U.S. ex rel.

Phipps v. Follette, 428 F.2d 912, 914-15 (2d Cir.1970) (regarding admissibility of in-court identification where pre-trial identification was impermissibly suggestive); United States v. Gomez Benabe, 781 F.Supp. 848, 857-58 (D.P.R.1991) (regarding admissibility of identification from photo array), aff'd, 985 F.2d 607 (1st Cir.1993); Jones v. Director of Patuxent Institution, 351 F.Supp. 913, 941 (D.Md.1972) (regarding admissibility of in-court identification where pre-trial identification was impermissibly suggestive); Coleman v. State, 760 S.W.2d 356, 359 (Tex.App.1988) (regarding admissibility of identification from photo array). See generally Wayne R. LaFave, Jerold H. Israel, & Nancy J. King, Criminal Procedure §§ 7.4(b) at 667-68, 7.4(c) at 673 (2d ed.1999). —Suggestiveness of Identiñcations at Issue— We shall assume arguendo that the post-conviction court was incorrect in its belief that “[tjhe reliability issue is only reached if the court finds an impermissible suggestiveness in the photo array,” and that reliability must be evaluated upon a mere showing of permissible suggestiveness. We nevertheless perceive no reversible error on the part of the post-conviction court. Our independent appraisal of the record satisfies us that the trial correct correctly determined that the identification was in no way suggestive, much less impermissibly so. ⁴⁰ The post-conviction court’s opinion was based on tacit acceptance of appellant’s assertion that four of the five witnesses were either unable to identify appellant or made only tentative identifications after viewing the first array; after viewing the second array, their identifications “became more positive.” Our review of the hearing on the motion to suppress convinces us, however, that this acceptance was clearly erroneous.

Detective Rinehart, the sole witness at the hearing, simply did not testify that four witnesses viewed both arrays. He indicated only that one witness, whom he did not name, saw both arrays. According to Rinehart, that witness reported that he had seen the suspect only from the side. The witness was nevertheless shown photos with only frontal views.

When the witness was unable to make an identification, he was shown the first array, which included side views. Detective Rinehart’s testimony regarding the presentation of photo arrays to the other witnesses was either vague or nonexistent. Ordinarily, our review of the denial of a motion to suppress evidence is “limited ... to information contained in the record of the suppression hearing and not the record of the trial.” State v. Collins, 367 Md. 700, 706-07 , 790 A.2d 660 (2002). See also Ferris v. State, 355 Md. 356, 368 , 735 A.2d 491 (1999); Simpler v. State, 318 Md. 311, 312 , 568 A.2d 22 (1990).

Because, in a post-conviction proceeding such as this, we are concerned with defense strategy and possible prejudice to the defendant, we look also to the trial record. Appellant directs us to nothing in the trial transcript that would support his assertion that four of the five witnesses in question viewed both arrays, and our own review unearths no such evidence. 6 ⁴¹ Rather, the trial transcript reflects that two of the five witnesses — Jaye Wilson and Jean Battle — made positive identifications of appellant after viewing only one array and apparently were not shown a second array. A third witness, Walter DeGrouchy, testified that he was shown one array and that he selected photos of appellant and one other person as resembling the assailant. There was no indication that DeGrouchy was ever shown another array.

At trial, DeGrouchy stated that appellant looked like the person he saw at the crime scene, but added, “I honestly can’t be totally positive.” Witness Leslie Spicer testified that the police never showed him any photos, but that he called the police after seeing a photo of appellant in a newspaper and stated that the photo resembled the man he saw at the crime scene. Finally, Richard Desmaris — apparently the witness to whom detective Rinehart referred at the suppression hearing — testified that he was shown “frontal pictures” a few days after the shooting but could not identify anyone because he had only seen the suspect’s profile. 7 Almost a year later, Desmaris was shown the second array, which consisted of frontal photos, but again could not make an identification. Desmaris asked the police to show him side-view photos, and the police then showed him the first array. Desmaris selected appellant’s photo from that array.

Were we, like the post-conviction court, to accept appellant’s assertion that four of the five witnesses viewed both arrays, we would agree with the post-conviction court’s conclusion that the argument that the identification procedure was suggestive for that reason would not have swayed the trial court. Thus, we would agree with the post-conviction court that under the circumstances the trial court was not required