Schmitt v. State

CHARLES E. MOYLAN, Jr., Judge, Retired, Specially Assigned. This is an appeal from the partial denial of post-conviction relief. In an August 1994 trial before a Baltimore County jury, the appellant, Steven Joseph Schmitt, was convicted of first-degree murder, attempted armed robbery, and the use of a handgun during the commission of a crime of violence. He is serving a term of life imprisonment.

This Court on direct appeal affirmed the convictions in an unreported opinion, see Schmitt v. State, No. 1414, Sept. Term, 1994, 105 Md.App. 805 (June 15, 1995) (Schmitt I), and the Court of Appeals denied certiorari. 340 Md. 303 , 666 A.2d 1237 (1995). On February 1, 2000, Judge J. Norris Byrnes granted the appellant partial post conviction relief and permitted him to file a belated appeal on two issues. Those issues were whether the trial court erred (1) in denying the appellant the right to introduce an eyewitness statement, contained in a police report and made by a person who was unavailable for trial, indicating that someone other than the appellant committed the crime; and (2) in allowing a police detective to testify regarding the absence of any police records of a shooting at an automatic teller machine on Pulaski Highway between September 18,1990, and October 1991, other than the shooting for which the appellant was tried. This Court in an unpublished opinion answered both of those questions in the negative and affirmed the appellant’s convictions.

Schmitt v. State, No. 3003, Sept. Term, 1999 (Oct. 19, 2000) (Schmitt II). ⁷ In his petition for post-conviction relief the appellant raised twenty-two separate allegations of ineffective assistance of trial counsel. Other than granting the belated appeal on two issues, Judge Byrnes denied all other relief requested by the appellant. It is the denial of four of those “other contentions” that is currently before us on appeal. Two contentions claim that although Judge Byrnes found instances of deficient performance by trial counsel, he erroneously failed to find trial prejudice: 1.

That Judge Byrnes erroneously determined that although counsel was ineffective for failing to object to the State’s faulty proffer of James Gatch’s testimony, such a failure was not so prejudicial as to warrant a new trial; 2. That Judge Byrnes erroneously determined that although trial counsel was ineffective for failing to request an alibi instruction, such failure was not so prejudicial as to warrant a new trial. Two other contentions claim that Judge Byrnes erroneously failed to find two instances of deficient trial performance in the first instance: 3. That Judge Byrnes erroneously determined that trial counsel was not ineffective for failing either to move for a mistrial or to ask for a missing witness instruction in light of the State’s failure to call Jerry Scharf as a witness; 4.

That Judge Byrnes erroneously determined that trial counsel was not ineffective for failing to try to impeach State’s witness Germaine Churma with her prior conviction of thefts. The fifth is the “grab bag” contention: 5. That Judge Byrnes erroneously determined that the cumulative effect of all errors at trial did not result in a denial of the appellant’s right to the effective assistance of counsel. ⁸ THE STRICKLAND V. WASHINGTON STANDARDS In our recent decision of State v. Gross, 134 Md.App. 528, 550 , 760 A.2d 725 (2000), cert. granted, 362 Md. 623 , 766 A.2d 147 (2001), we explained the applicable standard of review for claims of ineffective assistance of counsel: The fountainhead is Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). After pointing out that the “benchmark for judging any claim of ineffectiveness 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,” 466 U.S. at 686 , 104 S.Ct. 2052 , the Supreme Court went on to establish the now classic two-pronged test for making such a determination.

It referred to the two distinct elements that had to be analyzed as the “performance component” and the “prejudice component” of the “ineffectiveness inquiry.” 466 U.S. at 698 , 104 S.Ct. 2052 . See especially the excellent analysis and summary of the Strickland v. Washington test by Judge Orth in Harris v. State, 303 Md. 685, 695-701 , 496 A.2d 1074 (1985). And see Judge Hollander’s comprehensive analysis in State v. Jones, 138 Md.App. 178, 204-09 , 771 A.2d 407 (2001). We will look at the “performance component” and at the “prejudice component” as we examine each of the appellant’s claims of ineffective assistance of counsel.

Failure of Defense Counsel to Object to State’s Argument on Admissibility The first issue raised on appeal concerns the characterization of the trial testimony of James Gatch made by the State and not objected to by defense counsel in the course of a legal argument at the bench. The murder had occurred at an ATM machine on Pulaski Highway, directly across the street from the Pilot Motel where the appellant was staying. Gatch had testified as a State’s witness regarding a conversation he had had with the appellant in October of 1991, one year after the crime was committed. According to Gatch, during that con ⁹ versation the appellant asked Gatch for a ride out of town due to the fact that the appellant was suspected of murder.

The appellant, according to Gatch, admitted during that conversation that he had “shot someone at an automatic teller machine.” During the direct examination of Detective Brubaker, the lead detective on the case, the prosecutor asked him if he had checked police records for any reports of a robbery and shooting between September 19, 1990, and the fall of 1991. Defense counsel objected, and the State made the following proffer as to what Detective Brubaker would testify to: If you remember, James Gatch testified that he talked to the Defendant over a year after this incident occurred and that the Defendant had told him that he robbed and shot a guy at the ATM on Pulaski Highway. I want to be able to show that the Defendant, if you believe that statement, the Defendant wasn’t referencing some other shooting and robbery on Pulaski Highway that he might have committed or that someone else might have committed because th[ere] weren’t any other shooting[s] and robberies in that area. Both Baltimore City and Baltimore County Police reports where checked.

The incident that happened on September 18,1990, was the only shooting and robbery that occurred in that area. (Emphasis supplied). A. There Was No Proffer of James Gatch’s Testimony Although the appellant raises a lot of flack about this issue, it is difficult to pinpoint precisely what his issue really is. As we attempt to analyze it, let it be very clear that we are going to take the issue as framed by the appellant’s brief at face value.

We are not going to frame an issue for him that he has not expressly framed for himself. As the appellant sets out this issue: THE POST CONVICTION COURT ERRED IN NOT GRANTING THE APPELLANT A NEW TRIAL AFTER IT DETERMINED THAT TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE IN REGARD TO ¹⁰ THE STATE’S ERRONEOUS PROFFER OF JAMES GATCH’S TESTIMONY (Emphasis supplied). For starters, there was no State’s proffer, let alone a “State’s erroneous proffer, of James Gatch’s testimony.” James Gatch actually testified and there was, therefore, no occasion for anyone to proffer at any time what his testimony was going to be. His testimony was already a fait accompli.

During the testimony of Detective Brubaker the State asked him whether he had had “an occasion to check the Baltimore County and Baltimore City Police records for any incidents involving a robbery and shooting between September 19th of 1990 and the fall of 1991.” There was a defense objection and counsel approached the bench. At that bench conference there was, to be sure, a proffer as to what Detective Brubaker’s records check would show, but the proffer was of Detective Brubaker’s likely future testimony and was not in any way a “proffer of James Gatch’s testimony.” What the appellant was actually objecting to at the hearing on his post-conviction petition was not a proffer but, rather, the State’s allegedly erroneous characterization, in the course of an argument at the bench, of the appellant’s admission to Gatch as including the geographic detail “on Pulaski Highway.” B. An Arguendo Consideration As we will subsequently explain more fully under our subheading “An Alternative Holding,” we conclude that a true mischaracterization of the appellant’s admission to James Gatch never took place. Gatch’s reference to Pulaski Highway as a part of the appellant’s admission actually came into evidence. Because the briefs and the oral argument of both the appellant and the State, however, are based exclusively on the assumption that such a mischaracterization indeed took place, and because the findings and rulings of the post-conviction court were based on the same assumption, we will, purely for the sake of argument, tentatively make the same ¹¹ assumption in order to determine whether the appellant would have suffered a denial of the effective assistance of counsel even under those assumed circumstances.

C. Ineffective Assistance: The Post Conviction Ruling The appellant now contends that the failure of defense counsel to correct the State’s allegedly erroneous statement that James Gatch had testified that the appellant told him “that he robbed and shot a guy at the ATM on Pulaski Highway” constituted ineffective assistance of counsel. What is now claimed to have been erroneous was not a reference in the admission to an ATM but the reference to Pulaski Highway. At the hearing on the petition for post-conviction relief, the appellant’s trial counsel conceded, “I will make no excuses. I made a mistake.” Judge Byrnes found, with regard to the “performance” prong of Strickland , that defense counsel had made a mistake.

Nonetheless, Judge Byrnes ruled that that mistake did not, in the last analysis, so prejudice the defense that there was a reasonable possibility that the outcome of the case would have been different had it not been for counsel’s mistake. In that regard, Judge Byrnes explained: In light of all the circumstances, counsel’s entire performance viewed cumulatively was not deficient. When considered as an aggregate, these allegations do not constitute prejudice to Petitioner sufficient to merit relief. Although trial counsel’s performance was far from perfect, his performance did not affect the outcome of the case.

D. The Impact, If Any, Was On a Legal Ruling We note at the outset that this alleged mischaracterization came in the course of a legal argument over the admissibility of evidence at a bench conference before the judge alone. The jury was not privy to the alleged mischaracterization. They had heard for themselves what James Gatch had actually testified to. The evidentiary ruling, moreover, did not expose ¹² the jury to the State’s characterization of James Gatch’s testimony.

For the appellant, therefore, to attempt to aggregate that alleged mischaracterization at the bench with other possible misstatements in the course of closing argument, and to deploy them all under the banner of “repeated use of false and misstated evidence,” is misleading in the extreme. The appellant would have us believe that the cumulative effect of “repeated” misstatements had a poisonous effect on the minds, of the jurors, but this key characterization of Gatch’s testimony, central to the appellant’s argument about prejudicial jury impact, was never heard by the jurors and had no direct effect on them whatsoever. The possible consequences of counsel’s failure to object to the State’s alleged mischaracterization of the Gatch’s testimony will have to be assessed, therefore, in the less histrionic terms of its possible effect upon a legal ruling on admissibility rather than on the impressionable minds of the jurors. E. What Precisely Is The Appellant Claiming?

This brings us to the contention as actually set forth by the appellant in his brief. Four pages of the brief are devoted to this contention. Three of those four pages consist simply of stating the applicable standards for assessing the effectiveness of counsel under Strickland v. Washington and its supporting state and federal case law. A single page is spent on the merits of the contention itself.

Not a single word of that single page, however, is directed to the possible impact that the alleged mischaracterization had on the admissibility ruling, which is where the damage, if any, would have occurred. The appellant’s argument seems to be that Judge Byrnes was in error in fashioning relief as he did because the relief fashioned, a belated appeal on this issue, was foredoomed to be ineffective. Having found that trial counsel “should have objected to the prosecutor’s misstatements,” Judge Byrnes, the appellant maintains, was compelled to grant a new trial instead of granting a belated appeal. ¹³ As can be seen from this Court’s decision in Schmitt II, that amounted to granting the appellant no relief at all. Indeed, Kafka himself would have been proud of the result— trial counsel renders ineffective assistance by failing to object to the State’s erroneous proffer; post conviction court grants belated appeal to address the effect of trial counsel’s error; appellate court affirms trial court based on trial counsel’s failure to preserve the issue for review.

The absolute absurdity of this circular reasoning would be laughable, were it not for the fact that we are dealing here not with a work of fiction, but rather with a real-life case. (Emphasis supplied). F. A Belated Appeal As A Cure For Appellate Prejudice Because of the way the appellant’s argument unfolds, it is convenient for us on this subissue simply to assume, arguendo, that counsel was deficient in terms of trial performance. We will proceed immediately to a consideration of Strickland v. Washington’s prejudice prong, at least insofar as it involves possible appellate prejudice rather than possible trial prejudice.

Aside from mischaracterizing, by careful omission, what this Court actually said in Schmitt II, the appellant balks at acknowledging that possible prejudice under Strickland v. Washington can take many forms and that when the possibility of an erroneous legal ruling is the consequence of the deficient trial performance, the awarding of a new trial is not necessarily the appropriate relief. A trial lawyer’s deficient performance may, of course, result in trial prejudice by having an adverse impact on the trial verdict itself. It may, on the other hand, result in appellate prejudice. State v. Gross, 134 Md.App. at 581-86 , 760 A.2d 725 .

The failure to preserve an issue for appellate review is a classic example of trial error resulting in possible appellate prejudice. This last is the type of prejudice that Judge Byrnes found, and he remedied it by granting a belated appeal on the issue: ¹⁴ Trial counsel did [not] object to the admissibility of Detective Brubaker’s testimony regarding the “Pulaski Highway” shootings. It was a critical part of the State’s case. On appeal, this issue should have been addressed.

Petitioner should be allowed a belated appeal on this issue. On that belated appeal, ironically, it became clear that the appellant’s objection to Detective Brubaker’s testifying about a records check was based on broad evidentiary principles, as a matter of law, and was not based on the flawed factual predicate of an erroneous reference to Pulaski Highway. This Court thus phrased the appellant’s contention in Schmitt II: Did the trial court err in allowing a police detective to testify regarding the absence of any police records of a shooting at an automatic teller machine on Pulaski Highway between September 18, 1990, and October 1991, other than the shooting for which appellant was tried? As he began his legal analysis in Schmitt II, Judge Thieme elaborated on the precise nature of the contention: Appellant next argues that the trial court erred when it allowed Detective Brubaker to testify, over defense objections, regarding the absence of any Baltimore City or Baltimore County Police records, other than those for the case sub judice, of shootings taking place at ATM machines on Pulaski Highway between September 18, 1990, and October 1991.

In a sidebar argument at the bench, the State justified admission of this testimony under Maryland Rule 5-803(b)(10), which appellant now contends did not apply to this case. The contention was not that the trial judge’s ruling would have been otherwise but for the allegedly inaccurate characterization of the appellant’s admission to Gatch as including a reference to Pulaski Highway. The initial portion of this Court’s analysis of the admissibility question concerned the fact that the appellant’s trial was a “transition case” where the crime had occurred before but the trial came after the July 1, 1994 effective date of Maryland Rule 5 — 803(b)(10). We did hold that with respect to pre 1994 evidentiary law that the appellant had failed to preserve his ¹⁵ argument for appellate review.

It was this non-preservation holding that the appellant made reference to in his description of the appellant’s plight as Kafkaesque. What the appellant conveniently ignores, however, is that we did, in an alternative holding, go on to address the merits of the admissibility issue. On the merits, Judge Thieme wrote for this Court: Even had appellant preserved his argument for appeal, it fails on the merits, for the absence of records exception was not unknown in Maryland prior to 1994. In a 1908 action for bigamy, for example, the Court of Appeals upheld the trial court’s refusal to admit a certificate, prepared by a city record keeper, stating that there existed no record in his office of the marriage between defendant and a certain person.

See Pontier v. State, 107 Md. 384 , 68 A. 1059 (1908). The Court reasoned that “a mere negative certificate of the kind offered in this case” was inadmissible to prove the absence of such records; however, “[o ]ral testimony under oath of a search made of public records and its results is sometimes admitted to show the nonappearance thereon of certain entries or facts.... ” Id. at 392 [ 68 A. 1059 ] (emphasis added). See also Street v. State, 60 Md. App. 573, 578 , 483 A.2d 1316 (1984) (“It is well established that ‘a competent witness, who has investigated and is familiar with the contents of the entire mass [of records] may testify that certain entries in the corporate records do not exist.’ ”) (quoting Summons v. State, 156 Md. 382, 387 , 144 A. 497 (1929)), aff'd, 307 Md. 262 , 513 A.2d 870 (1986). (Emphasis supplied).

With respect to the admissibility of Detective Brubaker’s testimony, therefore, there clearly was no ultimate appellate prejudice. Counsel’s initial failure to preserve the issue for appellate review was inconsequential because the appellant was not ultimately denied his appeal on the issue. He got it and he lost it. G. The Performance Prong Revisited Judge Byrnes may have been a trifle hasty in ruling that defense counsel’s trial performance was deficient.

His ¹⁶ ultimate ruling that in the -final analysis there was no trial prejudice, however, rendered his earlier ruling on the performance prong inconsequential. By the same token, defense counsel’s falling on his sword on this issue may have been unduly self-abasing. Our prerogative to reach our own conclusion in this regard is clear. Harris v. State, 303 Md. 685, 697-98 , 496 A.2d 1074 (1985); Bowers v. State, 320 Md. 416, 428-29 , 578 A.2d 734 (1990); State v. Jones, 138 Md.App. 178, 209 , 771 A.2d 407 (2001); State v. Purvey, 129 Md.App. 1, 10 , 740 A.2d 54 (1999); Cirincione v. State, 119 Md.App. 471, 485 , 705 A.2d 96 (1998).

When the question is the effect of the trial performance on the resolution of a legal issue, raised or unraised, merely falling asleep at the switch or failing to argue effectively is not, ipso facto, a deficient performance. If counsel would not have prevailed on the legal issue in any event, no matter how timely it was raised or how effectively it was argued, then the less than sterling effort would not under Strickland v. Washington have constituted a deficient performance. What needs to be analyzed, therefore, is whether counsel’s failure to object to the State’s alleged mischaracterization of James Gatch’s testimony actually had any adverse influence on the trial judge’s ruling with respect to the admissibility of Detective Brubaker’s testimony. We conclude that it did not.

One reason it did not is that it had nothing to do with the basis for the trial judge’s ruling. At the bench conference following the objection to Detective Brubaker’s being questioned about the records check, the presence or absence of any reference to Pulaski Highway in the appellant’s admission to Gatch was clearly not a pivotal issue. The trial judge was initially going to sustain the objection because he thought that Detective Brubaker’s testimony about his review of the records would violate the rule against hearsay. The State argued that the testimony was an exception to the Hearsay Rule.

The trial judge demanded to know the nature of the exception. After a passing reference to the absence of an entry in a business record, the State ¹⁷ settled on the absence of a public record or entry pursuant to Maryland Rule 5-803(b)(10), which exempts from the hearsay ban the following: Absence of public record or entry. Unless the circumstances indicate a lack of trustworthiness, evidence in the form of testimony or a certification in accordance with Rule 5-902 that a diligent search has failed to disclose a record, report, statement, or data compilation made by a public agency, or an entry therein, when offered to prove the absence of such a record or entry or the nonoccurrence or nonexistence of a matter about which a record was regularly made and preserved by the public agency. The trial judge then overruled the objection, provided that the State could lay the foundation required by the rule.

In our opinion, the trial judge’s ruling on admissibility would not have been different even if a fuller and arguably more accurate discussion had taken place with respect to the absence from the appellant’s admission of a specific reference to Pulaski Highway. That was not a consideration of any significance to the trial judge’s ruling. To say that, in our judgment, a fuller and more accurate discussion WOULD not have altered the ruling the trial judge made, however, is not necessarily to say that a fuller and more accurate discussion SHOULD not have altered that ruling. That is a distinct aspect of the effect of the trial performance on any evidentiary ruling.

As we turn to that aspect, we note that with respect to evidentiary rulings on admissibility generally and rulings with respect to relevance specifically, the trial judge is vested with wide, wide discretion. At issue here was the admissibility of Detective Brubaker’s records check, which revealed no reports of an ATM robbery in the Pulaski Highway area for a period of one year following the September 18, 1990 shooting with which the appellant was charged. We cannot say that if the reference to Pulaski Highway had been omitted from the factual predicate, the records check would have been so utterly bereft of relevance as to have ¹⁸ rendered the trial judge’s evidentiary ruling to admit it an abuse of discretion. If the appellant was poised to argue that his admission to robbing and shooting someone at an ATM machine could have referred not to the shooting of Jerry Mathis on September 18, 1990 but to the shooting of some other victim at some other ATM machine, the absence of a report of such a crime even for a limited period and even for the limited immediate geographic area would have had some relevance in partially foreclosing such a strained and desperate argument.

Under the circumstances, we conclude that the trial performance was not deficient in this regard. H. The Prejudice Prong At The Trial Level Even if we were to assume, purely for the sake of argument, that trial counsel’s performance had been deficient in that regard, there remains the separate issue of ultimate trial prejudice. The appellant would have us believe that Judge Byrnes actually decided the issue of trial prejudice in his favor and then failed to fashion the appropriate relief. Judge Byrnes did no such thing.

The appellant hangs too desperately on every hurried and passing word. After ruling that trial counsel “should have objected to the prosecutor’s misstatements,” Judge Byrnes did add that “[h]is failure to object could have affected the outcome of the case, and it is addressed below.” (Emphasis supplied). Whatever words he there spoke, Judge Byrnes nonetheless deferred for another eight pages any ruling on trial prejudice. He waited, as he should have, until he had ruled on all alleged deficiencies in trial performance and then “addressed below” the cumulative prejudicial effect of all of the performance deficiencies he had found.

His ruling with respect to trial prejudice was clear: In light of all the circumstances, counsel's entire performance viewed cumulatively was not deficient. When considered as an aggregate, these allegations do not constitute prejudice to Petitioner sufficient to merit relief. Although trial counsel’s performance was far from perfect, his performance did not affect the outcome of the case. ¹⁹ Strickland v. Washington was similarly clear that it is the totality of circumstances or cumulative effect of all errors that must be assessed in ruling on ultimate trial prejudice. In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.

Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways. Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors. 466 U.S. at 695-96 , 104 S.Ct. 2052 .

Judge William Adkins wrote to a similar effect in Bowers v. State, 320 Md. 416, 436-37 , 578 A.2d 734 (1990): The post-conviction judge thought otherwise, but his approach was to consider each charge of deficient performance and consequent prejudice, and to decide that no one charge alone was serious enough to meet both Strickland tests. That approach was incorrect____ Even when individual errors may not be sufficient to cross the threshold, their cumulative effect may be.... We hold that the cumulative effect of Reddick’s actions and non-actions was enough to establish that his representation of Bowers did not meet constitutional muster. Judge Thieme said it for this Court in Cirincione v. State, 119 Md.App. at 506 , 705 A.2d 96 : Even when no single aspect of the representation falls below the minimum standards required under the Sixth ²⁰ Amendment, the cumulative effect of counsel’s entire "performance may still result in a denial of effective assistance.

The case against the appellant was a powerful one. Jerry Mathis was robbed and murdered at an ATM machine at between 1:54 and 1:59 A.M. The motel where the appellant was staying was immediately across the street. The front desk clerk described the appellant as pacing back and forth on the sidewalk in front of the motel beginning at about 1:30 A.M. He was “shaky and nervous” and smoking one cigarette after another. At what she estimated as between 1:45 and 1:50 A.M., the appellant rushed into the lobby from outside and asked her if she had heard gunshots.

She had not. He then blurted out something about “ow[ing] somebody some money” and thinking “maybe he would get killed if he didn’t give them the money he owed them.” When Officer David Hartman arrived at the crime scene at 1:59 A.M., the victim was still alive, slumped across the front seat of his car and covered with blood and broken glass. He had one gunshot wound to the head and two to the left side of his back and chest. He described his assailant as 1) a white male, 2) in his early 30’s, 3) with light brown hair, 4) wearing blue jeans, and 5) wearing a white tee-shirt.

Officer Susan Markowski; Priscilla Jones, the front desk clerk; and Germaine Churma collectively described the appellant that night as 1) a white male, 2) in his 30’s, 3) with light brown hair, 4) wearing blue jeans, and 5) wearing a white tee-shirt. The desk clerk, moreover, testified that he was the only person she had seen at the motel that night who fit that description. When Officer Markowski arrived at the parking lot of the motel at about 2:20 A.M., the appellant, who had been standing in a phone booth, approached her and asked 1) what had happened at the bank and 2) had someone been robbed at the ATM. When asked by the officer where he had been, he stated that he had just returned to the motel from “the Block.” That statement was inconsistent with the testimony of the witnesses who placed him at the motel as much as one hour earlier.

He never mentioned having heard gunshots. ²¹ Genevieve Churma testified that she had been at the motel in a room with the appellant and another man since before 1:30 A.M. She testified that both men left the room at approximately 1:30 A.M. She testified that shortly thereafter she heard gunshots and saw flashing lights. When the two men, one of whom was the appellant, subsequently returned to the room, she told them about the gunshots and “they just laughed.” Combined with all of those circumstances, the admission the appellant made to James Gatch produced an overwhelming case of guilt. The admission was made in October 1991 at the Midway Bar. Gatch was a tractor-trailer driver who frequently traveled out of state.

The appellant wanted to know if Gatch “would be interested in taking him out of town.” When Gatch replied that he was going to remain at home for a while, the appellant offered Gatch an unspecified amount of money, which the appellant actually removed from his pocket. Gatch declined the offer. The appellant informed Gatch that he believed that the police “had reasons to suspect him for murder.” The appellant then admitted that “he shot someone at a bank teller machine” and that “he had to leave the state because he was being charged with a murder.” The murder with which the appellant was subsequently charged was that of Jerry Mathis on September 18,1990. That admission made by the appellant was just as damning, whether it made specific reference to Pulaski Highway or not.

Unless the appellant was a serial killer with half a dozen ATM murders to his credit, any further pinpointing of the admitted “shooting at an ATM machine” was superfluous. What was of overwhelming significance was the appellant’s acknowledgment that he had shot and killed someone at an automatic teller machine and had to leave town. The suggestion that without the reference to Pulaski Highway the jury might have concluded that the admission was referring to some other robbery-murder at some other automatic teller machine is absurd. ²² We conclude that even if the records check had not been introduced into evidence, the case against the appellant was so overwhelming that there was no reasonable possibility that the verdict would have been different. AN ALTERNATIVE HOLDING A. The Inculpatory Reference Was In Evidence There is a separate and totally independent reason for rejecting the appellant’s first contention.

The contention rests on a predicate that is factually flawed. There was most assuredly evidence in the case that the appellant’s admission to James Gatch, indeed, included a reference to Pulaski Highway. During defense counsel’s cross-examination of Detective Brubaker, minutes after the ruling on admissibility, the following exchange took place: Q: Now, when you interviewed Mr. Gatch on November 19th, 1991, Mr. Gatch didn’t tell you that [Schmitt] said anything about an ATM machine, did he? All he said to you was we robbed someone on Pulaski Highway and he had to shoot someone, we don’t know if he was okay?

A: That’s correct. (Emphasis supplied). B. Hearsay, Albeit Objectionable, May Nonetheless Be Good Evidence Detective Brubaker thus testified that Gatch told him that the appellant had admitted that he “robbed someone on Pulaski Highway.” That, to be sure, , was hearsay, but the law is long settled that hearsay unobjected to is just as admissible as any other evidence. Chief Judge Carroll Bond stated in J.A. Laporte Corporation v. Pennsylvania-Dixie Cement Corp., 164 Md. 642, 649-50 , 165 A. 195 (1933): “Objectionable evidence admitted without objection has the force and effect of proper evidence.

Mahoney v. Mackubin, 54 Md. 268, 274 . And it is settled that evidence introduced without limitation of purpose is in for all purposes. Morri ²³ son v. Whiteside, 17 Md. 452, 459 ; Eckels & Sons Ice Mfg. Co. v. Cornell Economizer Co., 119 Md. 107, 116 , 86 A. 38 .” See also Gregg Neck Yacht Club v. Kent County, 137 Md.App. 732, 762 , 769 A.2d 982 (2001).

With specific reference to hearsay, Judge Collins observed in Moxley v. State, 205 Md. 507, 518 , 109 A.2d 370 (1954): Of course, the State’s attorney could waive the right to keep out this hearsay testimony. But, if he does so, the evidence which comes in has the same probative force as if it were competent. And see Martin v. State, 203 Md. 66, 73 , 98 A.2d 8 (1953). In Boggs v. State, 228 Md. 168, 172 , 179 A.2d 338 (1962), the Court of Appeals was also dealing with the unquestioned admissibility and probative value of unchallenged hearsay: In addition, the prosecuting witness who resided in the apartment testified without objection that a neighbor told her two men were taking items off the roof adjoining her apartment.

This unchallenged hearsay could properly have been considered by the trial court, Moxley v. State, 205 Md. 507 , 109 A.2d 370 (1954), and could have led it to conclude that the two men were Donnan and the appellant.... This Court held to the same effect, speaking through Chief Judge Robert C. Murphy in Hyman v. State, 4 Md.App. 636, 642 , 244 A.2d 616 (1968): Although hearsay, Officer Stanley’s testimony may be afforded the same probative force as if it were competent, the weight being for the trier of fact. Boggs v. State, 228 Md. 168 , 179 A.2d 338 ; Moxley v. State, 205 Md. 507 , 109 A.2d 370 . As such testimony was received in evidence, it provided the necessary foundation for the introduction of the gun into evidence and consequently no error was committed in admitting it at the trial.

See also Robinson v. State, 17 Md.App. 451, 462-63 , 302 A.2d 659 (1973) (“The evidence, to be sure, was hearsay. It was, moreover, hearsay twice compounded.... It is relevant and it is probative.”); James v. State, 5 Md.App. 647, 651 , 248 A.2d ²⁴ 910 (1969) (“[Although hearsay, it may be afforded the same probative force as if competent.”). C. A Claim That Was Never Made Evidence of a reference to Pulaski Highway in the appellant’s admission was thus unquestionably in the case.

As an artful dodger, the appellant will, faster than the eye can see, shift his attack from one on the absence of such evidence to the “unfortunate” presence of such evidence. He will adroitly redirect attention to his lawyer’s bringing out of this evidence in his cross-examination of Detective Brubaker as an ipso facto demonstration of ineffective assistance of counsel. There are two dispositive answers to such an inevitable cry of woe. In the first place, the appellant has never raised a claim that his lawyer’s cross-examination of Detective Brubaker constituted a denial of his right to the effective assistance of counsel.

Such a charge of ineffectiveness was never made in Schmitt I nor Schmitt II nor in the Post-Conviction Petition nor in the present appeal from the denial of more sweeping post-conviction relief. Such a claim is not before us. Even if it were, however, it would not prevail. D. The Evidence May Only Have Been What Everyone Accepted As Incontrovertedly True In truth, it may well be that the appellant’s admission to James Gatch had actually contained a reference to Pulaski Highway even though Gatch’s testimonial narrative neglected to include it.

At the post-conviction hearing it was brought out through appellant’s trial counsel that in James Gatch’s statement to the police, James Gatch had indeed stated that the appellant’s admission referred to Pulaski Highway. Trial counsel thus knew that such an inculpatory reference by James Gatch was an actual fact in the case. In his trial testimony, moreover, James Gatch never denied that such a reference to Pulaski Highway had been made by the appellant. Perhaps through inadvertent incompleteness, Gatch never testified to that specific fact and neither party ²⁵ sought to pinpoint him further with respect to it.

In no event, however, does it appear that Gatch’s failure to make a testimonial reference to Pulaski Highway should generate the sinister pall that the appellant now seeks to cast over the trial proceedings. It seems as if both the State and the defense assumed that James Gatch had testified in the way that they fully expected him to testify. If, as we suspect, trial counsel, subconsciously perhaps, was simply assuming something to be in evidence that he and the Assistant State’s Attorney and the police investigators all knew to be a non-controversial fact in the case, the appellant’s repeated references to the failure to object to “false evidence” are a bit excessive. Under the circumstances, the term “false” is a harsh label to apply to a momentary lapse of attention on the part of everyone. “Repeated false statements” conjures up images of a Machiavellian prosecutor scheming to poison the minds of the jurors with calculated lies and of a defense attorney, chronically asleep at the switch, permitting the State to get away with it.

We ask the appellant to turn down the rhetoric. Lapses are one thing; falsity is something else. E. A Good Tactical Decision, Even If A Lucky One In the second place, trial counsel’s cross-examination of Detective Brubaker, whether a conscious trial tactic or just a stroke of luck, produced what we conclude to have been a salubrious result. In the appellant’s admission as testified by Gatch, a robbery on Pulaski Highway was substituted for a robbery at an automatic teller machine.

Q: Mr. Gatch didn’t tell you that [Schmitt] said anything about an ATM machine, did he? All he said to you was we robbed someone on Pulaski Highway.... A: That’s correct. That appears to us to have been a sound trade-off.

An admission about shooting someone at an ATM machine would in the context of this case appear to have been, in our judgment, far more damning that a reference to shooting ²⁶ someone somewhere on Pulaski Highway. The ATM machine narrows the universe of crime scenes, and particularly of modi operandi, more convincingly than does Pulaski Highway. At the very least, the advantage of such a trade-off is tactically arguable and that removes it from the netherworld of Strickland v. Washington. In any event, the evidence that the appellant’s admission to James Gatch included a reference to Pulaski Highway came in via the hearsay route and subsequent references to it were, therefore, neither improper nor prejudicial.

The introduction of such evidence by defense counsel, moreover, would not have been an instance of ineffective assistance, even if such a claim had been made (it had not). Failure to Request an Alibi Instruction The appellant’s second contention is that counsel’s representation was ineffective because of the failure to request a jury instruction on subject of alibi. Judge Byrnes ruled that counsel’s performance in this regard was deficient but that the deficiency did not create a reasonable possibility that the outcome would have been different had counsel requested such an instruction: Witnesses testified that Petitioner was in the hotel room at the time the shots were fired. Trial counsel’s primary defense was Petitioner’s alibi.

Trial counsel’s failure to ask for the alibi instruction was deficient. However, trial counsel’s omission did not affect the outcome of the case. The issue of Petitioner’s alibi was fairly presented to the jury. A. The Alibi As An Autonomous Concept The alibi is an odd juridical animal.

The law, not strangely, has responded by treating it oddly. Until 1974, it treated the alibi far more harshly than a mere denial of guilt deserved. Since 1978, by way of overcompensation, it has been treating the alibi with a special solicitude that a mere denial of guilt also does not deserve. There are countless ways to say, “I didn’t do it,” and what we call an alibi is but one of them.

As long as defendants may testify and defense witnesses may be ²⁷ called, one of the myriad ways of refuting a charge of criminal complicity is to try to show that the defendant was some place else when the crime was committed. The oddity is that this one particular way of refuting complicity, unlike all other ways, has come to acquire a special tag or label all of its own. As a consequence of that initial oddity, it now enjoys a special handling all of its own. Sound theory, however, is always striving for simplification, and the alibi is a stumbling block in the path of that effort.

Two nagging questions will not go away: 1) How did this aberration come to be? and 2) Must this aberration go on forever? The alibi almost certainly took on an identity of its own because of the popular culture. The dime novels and gangster films of the 1930’s gave it a high profile that has never waned. It is hard even to say the word without hearing in the mind’s ear the inflections of a James Cagney or an Edward G. Robinson.

The word itself is redolent with at least a tinge of the unsavory. God-fearing folk don’t need alibis; it is scoundrels and mountebanks who resort to them. (This is one good reason some defense attorneys do not even want the jury to hear the word “alibi” associated with their clients.) Since the 1930’s, the contours of what we call an alibi have actually grown. The coverage of the alibi’s special handling has grown correspondingly.

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