State v. Armstead

Harrell, J. "Ninety-nine bottles of beer on the wall, Ninety-nine bottles of beer. You swab one down and run it through CODIS, Ninety-eight bottles of beer on the wall." Lines spoken by the character Greg Sanders on "CSI" Season 3, Episode 19 "A Night at the Movies" (CBS-TV. Episode aired 10 April 2003) At the core of this post-conviction case is the rectitude of the failure of trial counsel for Appellee, Kevin Armstead, to object to a so-called "anti-CSI effect" 1 voir dire question propounded on 25 March 2009 to the venire by a trial judge of the Circuit Court for Baltimore City.

Armstead contends that that failure amounts to ineffective assistance of trial counsel because he would have had a reasonable probability of success on direct appeal had a challenge to the propriety of the voir dire question been preserved. The circuit court granted Armstead a new trial in 2016 in this post-conviction proceeding, which Armstead initiated in 2014. Appellant, the State of Maryland, complains that the award of a new trial is inappropriate because, on 25 March 2009, Maryland common law (such as it was) approved of such a CSI question. Mistakenly, according to the State, the 2016 post-conviction court relied on contrary, subsequently-decided case law to justify ordering a retrial.

The State maintains that Armstead's trial counsel was not obligated in 2009 to "see into the future" and anticipate the outcomes in the later-decided cases. Moreover, Armstead "did not call his trial defense counsel, or any other attorney, as a witness [in the post-conviction phase] to testify concerning the propriety of trial counsel's deliberate [trial strategy] decision not to object to the voir dire question." Thus, "there is no basis in which the post-conviction court could conclude that Armstead's [t]rial counsel was ineffective as alleged." Armstead failed, therefore, to satisfy his burden under the factors in Strickland v. Washington 2 to prove ineffective assistance of counsel. The State argued also that Armstead failed to demonstrate satisfactorily how he was prejudiced by the lack of an objection, the second factor in the Strickland analysis. In this appeal, Appellant poses one question: I. Did the post-conviction court err when it determined, based on case law that issued after Armstead's trial, that Armstead's trial counsel was ineffective for failing to object to the circuit court's issuance of a CSI voir dire question?

We hold that the post-conviction court erred when it granted Armstead's petition and ordered a new trial. Armstead's trial counsel was not ineffective for failing to object to the CSI voir dire question. Even if we assumed his trial counsel's omission constituted ineffective representation, the claimed error was harmless, beyond a reasonable doubt, on the circumstances of this record. Statement of Facts We, like the post-conviction court, adopt in relevant part the summary of the evidence presented at Armstead's 2009 trial, as stated in our opinion regarding Armstead's direct appeal, Armstead v. State , 195 Md. App. 599 , 605-09, 7 A.3d 169 , 172-75 (2010), cert. denied , 418 Md. 191 , 13 A.3d 798 (2011) : On [20 March 2007], Ricardo Paige was found lying dead on the living room floor of his residence at 502 East 43rd Street in Baltimore City, Maryland, having suffered multiple gun shot wounds.

He was discovered by his daughter, Deneen Woods, and his grandson, Ricardo McDonald. Woods testified at trial that she had seen [Armstead], also known as "Muggs," on the block on prior occasions with [Jamal] Fulton, who she knew as "Nube," and with Trendon and Tremaine Washington, twin brothers, both of whom she knew as "Twin." Fulton lived in the house next door, 500 East 43rd Street. Drugs were a "big problem" with Fulton. On the Friday before Woods's father was murdered, Fulton came to 502 East 43rd Street and argued with Paige.

Fulton told Woods that her father was "making his spot hot." Woods responded by telling Fulton that she did not want any drugs to be around her father, and Fulton replied that "he would not say nothing else to [her] dad." At some point after Paige's death, Woods spoke to a person in the neighborhood she knew as "Lurch." Lurch provided Woods with some information, and Woods conveyed that information to Detective James Lloyd. Leroy Simon testified that he is known as "Lurch" and that he knew Paige through Woods. In late March 2007, intending to exchange drugs for sex, he was with a woman behind the victim's residence. At that time, he saw [Armstead], Fulton, known to him as "Nuke," and "Twin" and another unidentified individual near Paige's house.

He observed [Armstead] go into Paige's house first, and then he heard some "tussling." A few minutes later, he saw "Twin" enter the house. Fulton went inside the residence as well. The unidentified person remained outside the residence where he was giving orders. After [Armstead], Fulton, and "Twin" were inside, Simon heard gunshots.

He then heard sounds as if someone was sweeping up some glass and then saw the trio emerge from the residence. Simon knew both Tremaine and Trendon Washington, and was aware that one of them was incarcerated at the time. He identified a photograph of Trendon Washington as the person he was referring to as "Twin" in his testimony. After Simon testified that he spoke to Detective Lloyd on three occasions, the State sought to refresh his recollection with a statement, but Simon testified that he could not read or write.

Because there was some confusion about whether Simon ever told police that he saw Fulton enter the residence, the jury was excused, and the tape of Simon's third interview was played to refresh Simon's recollection. After the jury returned, Simon testified that Fulton was standing outside of the house and actually never went inside. Simon admitted he had made a mistake earlier during his testimony when he said Fulton had gone inside. Simon continued his testimony as follows: While [Armstead], "Twin" (Trendon Washington), and an unidentified third person were inside the residence, Simon heard tussling.

After he heard these sounds, Fulton, "who remained outside, hollered, 'handle your business.' " Simon then heard two to three gunshots. After the shooting, Simon saw all four individuals run from the residence. Simon identified a photo of [Armstead] as a person who was present at the crime scene and had entered the residence. He also identified both Tremaine and Trendon Washington, distinguishing between them and identifying Trendon Washington as the twin present at the scene.

Simon was originally unable to identify the person who remained outside the residence, but, after refreshing his recollection, recalled that during the third interview with police, he identified a photograph of Fulton, indicating that he was the one who stayed outside and "gave orders." Asked why he did not go to the police earlier, Simon stated: "It ain't good to snitch, it ain't good to snitch. Snitchers get stitches, that's how I always looked at it." However, when he learned that the victim was Wood[s]'s father, Simon decided to come forward. He learned two days after he saw the individuals at Paige's residence that Paige had died. On cross-examination, Simon testified that he had not testified in the trial involving Trendon Washington and that he was incarcerated when he first spoke to Detective Lloyd about this case.

Detective Chris Glanville testified that he encountered [Armstead], and both Trendon and Tremaine Washington, on [28 April 2007]. At that time, he recovered a loaded .45 caliber Springfield nineteen eleven model firearm from Trendon Washington. All of the bullets recovered in this case were .45 auto caliber. The ballistics evidence was compared to the recovered firearm, and two of the cartridge casings recovered from the crime scene were fired from that pistol.

Other bullet specimens could neither be identified nor eliminated as being fired from the recovered gun. However, three of the five bullets recovered in this case were fired by the same firearm, while the two remaining bullets lacked proper markings for comparison. Detective Lloyd testified that Trendon Washington, Fulton, and [Armstead] were arrested in connection with this case. [Armstead] was arrested in Decatur, Georgia, where he gave the name "James L. Jefferson." When [Armstead] was interviewed on [10 April 2008], the parties stipulated that [Armstead] stated: "I already looked up the case. Why am I not just charged with conspiracy, what about the other three?" The charging documents at that time did not mention conspiracy.

Also, Detective Lloyd testified that he had never told [Armstead] about a conspiracy charge or that there were three other people involved in the crime. Detective Lloyd testified that he was aware that DNA evidence had been collected at the crime scene, but the parties stipulated that all of that evidence came back as being consistent with the victim's DNA. Latent fingerprints recovered from the crime scene were also consistent with being from the victim. Additionally, a search warrant was obtained for [Armstead]'s home and nothing was recovered from that search relating to this investigation.

The State's last witness was the medical examiner, Dr. Theodore King. According to Dr. King, Paige died of multiple gunshot wounds, and the manner of death was homicide. He could not pinpoint the exact time of death. After the State rested, defense counsel called Fulton.

Fulton testified that he knew [Armstead] and that he knew him by the name of "Muggs." Fulton used to live at 500 East 43rd Street in Baltimore City, "[u]p to prior to [his] arrest" in 2007. Paige, who Fulton knew as "Poppy," lived next door at 502 East 43rd Street. Fulton also knew Woods, Woods's son, Ricky, and Simon, also known as "Lurch." Fulton stated that he was originally charged with Paige's murder. Fulton testified that, on [18 March 2007], Trendon Washington called and asked Fulton to drive him to the "vial store." Trendon Washington sold drugs, including crack and marijuana, and usually stored his drugs in a vacant house located nearby at 508 East 43rd Street.

Fulton, along with [Armstead], accompanied Washington to the store to buy vials so he could package his drugs. When they returned, Fulton parked in front of 508 East 43rd Street while Washington went inside. Moments later, Washington emerged and angrily informed them that his drugs were missing and that the back door to that location had been knocked down. Recalling that Paige was outside when the three of them left to go to the "vial store," Washington and [Armstead] then went to Paige's home, while Fulton remained with his car.

Trendon Washington engaged Paige in a conversation, but Fulton could not hear what they were saying. After that conversation, Washington and [Armstead] returned to Fulton's car, and Washington said, "I'm going to go do that." Fulton understood this to mean that Washington was going to beat and then kill Paige. Fulton testified that he saw Trendon Washington the next day, but he did not mention Paige or the drugs. Fulton then saw Trendon Washington again, on [20 March 2007], at around noon or 1:00 p.m., and Fulton asked him where Paige was because he had not seen him in two days.

Washington replied, "I done what I said I was going to do." Fulton understood this to mean that Washington had killed Paige. Around 5:00 or 6:00 p.m. that same day, Fulton learned that Paige was dead. Fulton further testified that he had seen Trendon Washington carry a .45 caliber semi-automatic handgun on prior occasions, including in January and February of 2007. Fulton described the gun, and then identified State's Exhibit 6A as Trendon Washington's gun.

On cross-examination by the State, Fulton confirmed that he was not present at the time of the murder[ ]and, further, that Trendon Washington did not provide him with any details of what he had done. Nor did Washington tell Fulton if he was with anyone at the time of the murder. (Emphasis added). Armstead was charged with "conspiracy to commit murder, murder, use of a handgun in the commission of a felony and crime of violence, and wearing, carrying and transporting a handgun." Armstead , 195 Md. App. at 604 , 7 A.3d at 172 .

His jury trial lasted from 25 March 2009 to 2 April 2009. During voir dire on the first day, the judge queried the venire as follows: 3 Now I'm going to assume that many of you watch way too much television including those so-called realistic crime shows like Law and Order and CSI New York and CSI Miami and CSI Glenn Burnie and the rest of them. I trust you understand that these crime shows are fantasy and fiction and for dramatic effect to entertain you they claim to rely upon 'scientific evidence' to convict people. This is certainly acceptable as entertainment but you must not allow your entertainment to interfere with your solemn duties as a juror.

Therefore, if you are currently of the view that you cannot convict the defendant without 'scientific evidence' regardless of all of the other evidence in the case and regardless of the instruction that I give you as the law, please stand. All right, I see no responses . (Emphasis added). Armstead's trial counsel did not object to this question.

The empaneled jury convicted Armstead of conspiracy to commit first-degree murder and second-degree murder. The court sentenced him to life imprisonment, plus a consecutive thirty years. Armstead filed numerous post-trial motions, all of which the trial court denied. Armstead asserted five questions for review in his direct appeal. 4 We affirmed Armstead's conviction in 2010.

The Court of Appeals denied his petition for writ of certiorari in 2011. On 1 July 2014, Armstead filed a petition for post-conviction relief, calling-out his trial counsel as ineffective for failing to object to the circuit court's posing of the CSI voir dire question. As he perceived the query, it deprived him of his Sixth Amendment right 5 and his right under Article 21 of the Maryland Declaration of Rights. 6 The circuit court held a hearing on Armstead's post-conviction petition on 6 January 2016. 7 The post-conviction court granted Armstead's petition and awarded a new trial. The court held, in relevant part: Although trial counsel is not required to object to every possible trial judge error, trial counsel is ineffective for failing to object to rulings where there is a reasonable probability of success during an appeal ... the question propounded in [Armstead's] case, was inherently ... prejudicial ...

Thus, the trial counsel rendered ineffective assistance of counsel by failing to preserve the issue for appeal because there is a reasonable probability that [Armstead] would have succeeded on appeal had trial counsel objected on the grounds that the question prejudiced the voir dire panel ... [Armstead's] first allegation of error [ ] is sufficient to grant a new trial. Analysis I. Ineffective Assistance of Counsel. a. Appellant's Arguments. Appellant avers that the post-conviction court granted erroneously Armstead a new trial.

In support of its ambition, the State contends that, under Strickland , Armstead failed to overcome the presumption that his trial counsel's inaction in not objecting to the CSI voir dire question was strategic. Armstead called neither his trial counsel nor any other attorney during his post-conviction hearing as a witness to testify whether his trial counsel's election not to object to the CSI voir dire question deviated grievously from sound professional judgment. Furthermore, there was, at the time of the 25 March 2009 voir dire , no reported Maryland jurisprudence suggesting the impropriety of such a CSI voir dire question. Rather, the common law (such as it was at the time) favored such a voir dire question.

Trial counsel was not expected to possess foresight to anticipate the subsequent change in the law limiting substantially the situations in which a CSI voir dire question or jury instruction may be appropriate. Appellant finds error also in the post-conviction court's conclusion that, had trial counsel objected to the CSI voir dire question, "Armstead stood 'a reasonable probability' of obtaining appellate reversal of his convictions." The State maintains "that there was no evidence before the post-conviction court that Armstead's direct appeal counsel ... would have ... [raised] a challenge to the CSI voir dire question had that claim been preserved for appellate review." b. Appellee's Arguments. Armstead responds that his trial counsel's failure to object to the court's deployment of the CSI voir dire question was "not sound trial strategy because she knew that there was no scientific evidence linking [him] to the crime, and that the very notion served as the substantial basis of the defense theory of innocence." Trial counsel's failure to object "could not have been the result of reasonable professional judgment because it allowed the court to suggest to the jury that the lack of any scientific evidence [connecting him to the crime] could be ignored." The inherent prejudicial nature of the court's CSI voir dire question, notably the court's use of the word "convict," rendered it untenable.

This suggested to the potential jurors that convicting Armstead was a foregone conclusion. Further, Armstead contends that he should benefit in this case from the state of the law regarding the proper use of CSI instructions and voir dire questions that came into existence following his trial, i.e., the later-decided case law should apply retrospectively. Specially, Armstead maintains that Allen v. State , 204 Md. App. 701 , 42 A.3d 708 (2012), approves the retrospective application of Stabb v. State , 423 Md. 454 , 31 A.3d 922 (2011), Atkins v. State , 421 Md. 434 , 26 A.3d 979 (2011), and Charles & Drake v. State , 414 Md. 726 , 733, 997 A.2d 154 , 158 (2010), to our analysis of his trial counsel's inaction, as was the view taken by the post-conviction court. Allen countenances retrospective application, as this argument goes, because Stabb and Atkins did not "create new constitutionally based principles[,] but applied settled federal and state constitutional guarantees to new factual situations." c.

The Strickland Standard. The federal Sixth Amendment and Article 21 of the Maryland Declaration of Rights guarantee all criminal defendants the right to the assistance of counsel. Duvall v. State , 399 Md. 210 , 220-21, 923 A.2d 81 , 88 (2007) (quoting Strickland , 466 U.S. at 686, 104 S.Ct. 2052 ) (quotation marks omitted). Within both constitutional standards nests the right to effective assistance of counsel.

See id. (emphasis added). Taylor v. State explains Strickland's application when evaluating counsel's effectiveness: The defendant who claims that he or she received ineffective assistance of counsel, as a general rule under the test announced in Strickland and followed ever since, must make two showings: [ (1) ], the defendant must show that counsel's performance was deficient [the performance factor] [; and (2) ], the defendant must show that the deficient performance prejudiced the defense [the prejudice factor]. 428 Md. 386 , 399-400, 51 A.3d 655 , 662 (2012). Thus, "both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact." Strickland 466 U.S. at 698 , 104 S.Ct. at 2070 .

It is clear that: [t]he standard of review of the [trial] court's determinations regarding issues of effective assistance of counsel is a mixed question of law and fact. We will not disturb the factual findings of the post-conviction court unless they are clearly erroneous. 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 .... [The appellate court] will evaluate anew the findings of the [trial] court as to the reasonableness of counsel's 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. State v. Sanmartin Prado , 448 Md. 664 , 679, 141 A.3d 99 , 108 (2016) ( quoting State v. Jones , 138 Md. App. 178 , 209, 771 A.2d 407 , 425 (2001), aff'd , 379 Md. 704 , 843 A.2d 778 (2004) ). Newton v. State noted recently, however, that: Strickland also instructs that courts need not consider the performance prong and the prejudice prong in order, nor do they need to address both prongs in every case. As [ Strickland ] explained, [i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. 8 455 Md. 341 , 356, 168 A.3d 1 , 9 (2017), cert. docketed , No. 17-6478 (U.S., 26 Oct. 2017), (Internal quotations and citations omitted).

Regarding Strickland's performance factor, [t]he 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 ... [T]he defendant must [also] demonstrate that counsel's alleged acts or omissions, based on the facts of the particular case, viewed as of the time of counsel's conduct, fell outside the wide range of professionally competent assistance. Sanmartin Prado , 448 Md. at 681 -82 , 141 A.3d at 109 (quoting Strickland 466 U.S. at 687, 690 , 104 S.Ct. at 2052 ) (quotation marks omitted). Prevailing professional norms define what constitutes reasonably effective assistance, and all of the circumstances surrounding counsel's performance must be considered.

Because it is tempting for both a defendant and a court to second-guess a counsel's conduct after conviction, courts must be highly deferential when they scrutinize counsel's performance. Reviewing courts must thus assume, until proven otherwise, that counsel's conduct fell within a broad range of reasonable professional judgment, and that counsel's conduct derived not from error but from trial strategy. Mosley v. State , 378 Md. 548 , 557-558, 836 A.2d 678 , 683 (2003) (citations and quotation marks omitted); see also Harris v. State , 303 Md. 685 , 697, 496 A.2d 1074 , 1080, (1985) (explaining that to show deficient performance by counsel the defendant must "overcome the presumption that ... the challenged action might be considered sound trial strategy" (citing Strickland , 466 U.S. at 686-688 , 104 S.Ct. at 2064-66 ) ). The soundness of trial strategy is examined typically in the contexts of investigation, preparation, and compliance with professional norms.

State v. Borchardt , 396 Md. 586 , 604, 914 A.2d 1126 , 1136 (2007) (noting that "[b]efore deciding to act, or not to act, counsel must make a rational and informed decision on strategy and tactics based upon adequate investigation and preparation."). First, we consider whether trial counsel violated Armstead's right to effective assistance of counsel when she failed penultimately to object to the circuit court's CSI voir dire question, failing ultimately to preserve the issue for appellate review on direct appeal (and perhaps as well in this collateral proceeding). i. The CSI Voir Dire Question. The Sixth Amendment and Article 21 of the Maryland Declaration of Rights grant to criminal defendants not only the right to effective assistance of counsel, but also "the right to a fair trial, which includes a requirement that trial judges refrain from making statements that may influence improperly the jury." Stabb , 423 Md. at 463 , 31 A.3d at 927 . 9 Thus, "a defendant has the right to be tried by a fair and impartial jury, Md. Dec. of Rts.

Art. 21, and the " 'jury is the exclusive judge of the fact[s].' " Atkins , 421 Md. at 443 , 26 A.3d at 983 (quoting Gore v. State , 309 Md. 203 , 210, 522 A.2d 1338 , 1341 (1987) (citing Md. Dec. of Rts. Art. 23 ) ). In that continuum, trial judges occupy an authoritative position, such that they: should be exceedingly careful in any remarks made by [them] during the progress of a trial [including voir dire ], either in passing upon evidence or ruling upon prayers, and should carefully refrain, either directly or indirectly, from giving expression to an opinion upon the existence or not of any fact, which should be left to the finding of the jury .... Gore , 309 Md. at 212 , 522 A.2d at 1342 (quoting Elmer v. State , 239 Md. 1 , 10-11, 209 A.2d 776 , 782 (1965) ).

Voir dire is critical to ensuring protection of a criminal defendant's "Sixth Amendment [and Article 21 right] to an impartial jury." White v. State , 374 Md. 232 , 240, 821 A.2d 459 , 464 (2003) (quoting Rosales-Lopez v. United States , 451 U.S. 182 , 188, 101 S.Ct. 1629 , 1634, 68 L.Ed.2d 22 (1981) ) (italics omitted). Any voir dire question, commentary, or instruction is precluded when its effect relieves the State of "its burden of persuasion in a criminal case, i.e., its burden of proving beyond a reasonable doubt all the facts necessary to constitute the offenses." Atkins , 421 Md. at 443 , 26 A.3d at 983 (2011) (quoting State v. Evans , 278 Md. 197 , 362 A.2d 629 , 635 (1976) ). Md. Rule 4-312(d), governing the conduct of voir dire , states in relevant part: (d) Examination and challenges for cause. (1) Examination.

The trial judge may permit the parties to conduct an examination of qualified jurors or may conduct the examination after considering questions proposed by the parties. If the judge conducts the examination, the judge may permit the parties to supplement the examination by further inquiry or may submit to the jurors additional questions proposed by the parties. The jurors' responses to any examination shall be under oath. On request of any party, the judge shall direct the clerk to call the role of the array and to request each qualified juror to stand and be identified when called.

Voir dire's primary purpose is to ensure a fair and impartial jury. Charles & Drake , 414 Md. at 733 , 997 A.2d at 158 . Voir dire "entails examination of prospective jurors through questions propounded by the judge (or either of the parties, if allowed by the judge) to determine the existence of bias or prejudice and, literally translated, means 'to say the truth.' " Charles & Drake , 414 Md. at 733 , 997 A.2d at 159 (internal quotation marks omitted). The trial court is charged with discerning a juror's ability to perform his or her duty fairly and impartially through questioning the juror on "issues particular to the defendant's case so that biases directly related to the crime, the witnesses, or the defendant may be uncovered." State v. Logan , 394 Md. 378 , 395, 906 A.2d 374 , 384-85 (2006).

Therefore, "the subject [of voir dire questions] is left largely to the sound discretion of the court in each particular case." Moore v. State , 412 Md. 635 , 644, 989 A.2d 1150 , 1155 (2010) (quoting Corens v. State , 185 Md. 561 , 564, 45 A.2d 340 , 343 (1946) ). The abuse of discretion standard explains that: a ruling reviewed under an abuse of discretion standard will not be reversed simply because the appellate court would not have made the same ruling. The decision under consideration has to be well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable. King v. State , 407 Md. 682 , 697, 967 A.2d 790 , 799 (2009).

A chief concern when evaluating whether a trial judge abused his or her discretion when imparting to the venire a CSI effect "message" is whether the perception of the message relieves ultimately the State of its burden to prove the criminal defendant's guilt beyond a reasonable doubt. Stabb , 423 Md. at 472 , 31 A.3d at 933 . A CSI effect jury message received its initial reported appellate analysis in Maryland in Evans v. State , 174 Md. App. 549 , 922 A.2d 620 (2007), which involved a jury instruction . It re-surfaced next in the context of a voir dire question in Drake & Charles v. State , 186 Md. App. 570 , 975 A.2d 204 (2009), rev'd sub nom.

Charles & Drake v. State , 414 Md. 726 , 997 A.2d 154 (2010). Since then, the implications of CSI effect jury messages have tasked repeatedly both of our appellate courts to consider the potential for prejudice on the minds of jurors. 10 As relevant to this appeal, Stabb and Atkins (the present day standard-setters) make clear, based on the "inconclusive state of the scholarly legal and/or scientific research 11 taken as a whole," that Maryland disapproves of preemptive anti-CSI messages to the venire or the empaneled jury. Stabb , 423 Md. at 473 , 31 A.3d at 933 (to the extent that such an instruction is requested, its use ought to be confined to situations where it responds to correct pre-existing overreaches by the defense, i.e., a curative instruction. The Court of Appeals may revisit the appropriateness of CSI messages when tailoring an "appropriate response through voir dire questions and/or jury instruction" when a demonstration of scholarly research has become more abundant); State v. Stringfellow , 425 Md. 461 , 473-74 n. 4, 42 A.3d 27 , 34-35 n. 4 (2012) (" Stabb and Atkins discuss when it may be permissible for courts to pose a voir dire question or a jury instruction to counter what has been referred to popularly as the 'anti-CSI effect.' Suffice it to say; these cases hold that it is erroneous to pose such a question or instruction as a pre-emptive measure." (emphasis added) ).

There must be, at minimum, some form of relevant misstatement(s) of law or conduct by counsel for the court to issue an appropriate and curative CSI effect jury instruction or similar anticipatory grounds to ask a voir dire question. See Hall v. State , 437 Md. 534 , 540-41, 87 A.3d 1287 , 1290-91 (2014). Moreover, counsel's mere reference to, or argument regarding (or announced intent to argue), the absence or insufficiency of the State's scientific evidence to meet its burden of proof to convict a criminal defendant does not warrant automatically the court's issuance of a CSI message. See Robinson v. State , 436 Md. 560 , 580, 84 A.3d 69 , 81 (2014).

Stabb , "with a [clairvoyant] nod to the future," noted that there might be situations where CSI effect messages may be appropriate. Stabb , 423 Md. at 473 , 31 A.3d at 933 . When those situations arise, the message must be neutral, i.e., the message must not convey to the jury that their only option is to convict , even if no forensic evidence linking the defendant to the crime(s) is adduced by the State. The message should (at least) include language indicating that a not guilty verdict is an alternative.

See Charles & Drake , 414 Md. at 738 , 997 A.2d at 161 (noting the language of the voir dire question was not neutral, "using the term 'convict,' solely, rather than including its alternative"); Samba v. State , 206 Md. App. 508 , 534, 49 A.3d 841 , 857 (2012) ("the anti-CSI effect instruction was fatally flawed for not advising the jury to consider the lack of forensic evidence in evaluating reasonable doubt"). The question before us requires consideration of the status of the law at the time of Armstead's trial, and that which evolved to the contrary afterwards. After doing so, we find no dilemma holding in this case that trial counsel's performance was not deficient for failing to object to the CSI voir dire question. There was no legal signpost alerting trial counsel to the possibly inappropriate nature of this CSI effect voir dire question . ii.

The Direction The Legal Winds Were Blowing in 2009 Regarding a CSI Effect Voir Dire Question. Armstead concedes that at the time of his jury trial, "the current body of case law regarding this 'CSI instruction' had not yet arrived." In fact, there was little case law existing at the time of Armstead's trial regarding CSI effect voir dire questions. Trial counsel may be imputed reasonably to know only of the Evans opinion from this Court, filed two years earlier, discussing a defense counsel's objection to a CSI effect jury instruction , which instruction was suggested to be proper. Evans was convicted of possession-related heroin charges.

Evans , 174 Md. App. at 552 , 922 A.2d at 622 . Evans' conviction was based on the eyewitness testimony from an undercover police officer who was conducting an undercover narcotics purchase. Evans , 174 Md. App. at 555 , 922 A.2d at 624 . At trial, the judge, noting an objection from a co-defendant's counsel, 12 charged 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 tests.

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.

Evans , 174 Md. App. at 570 -71 , 922 A.2d at 632-33 (emphasis added). Considering the sufficiency of the evidence, we explained that the argued absence from the State's case of forensic evidence, i.e., photographic or video evidence of the heroin transaction, was not material. See Evans , 174 Md. App. at 570 -71 , 922 A.2d at 633 . Although the introduction of such evidence would have "made the discharge of the jury's duty easier," it was, at the end of the day, unnecessary for the State in meeting its burden through the evidence it did adduce.

Id. Moreover, we indicated that the instruction was "a correct statement of the law, was applicable to the facts in the case and was not fairly covered by other instructions given[,]" and the "robust and vehement closing arguments of counsel ... warranted [further] giving the instruction." Evans , 174 Md. App. at 570 , 922 A.2d at 632 . As the parties note correctly in their briefs, there was no law on CSI effect voir dire questions existing at the time of Armstead's trial. The only arguable basis that trial counsel might have had imputable notice of the possible impropriety of such a voir dire question would have been Drake & Charles , 186 Md. App. 570 , 975 A.2d 204 (decision filed on 7 July 2009).

When we considered Drake & Charles , the briefs, however, were not filed until 7 April 2009 and 7 May 2009, respectively, after Armstead's trial concluded. In any event, our decision in Drake & Charles would have provided no basis for Armstead's counsel to think there was a basis to object. Thus, there was no apparent indicator to Armstead's trial counsel that the law might be tacking in a different direction than Evans. 13 It is unreasonable to expect trial counsel to foresee the change that remained beyond the horizon. iii. What Changed in the Post-2009 Law?

The legal analysis of CSI effect voir dire questions and instructions took a sharp turn from Evans beginning with the Court of Appeals's decision in Charles & Drake v. State (a direct appeal case), which reversed our 2009 decision in Drake & Charles v. State . In Charles & Drake v. State , over the defendant's objection , the trial judge propounded the following CSI effect question to the prospective jurors during voir dire : I'm going to assume that many of you, from having done a few of these, watch way too much TV, including the so-called realistic crime shows like CSI and Law and Order. I trust that you understand that these crime shows are fiction and fantasy and are done for dramatic effect and for this dramatic effect they purport to rely upon, 'scientific evidence,' to convict guilty persons. While this is certainly acceptable as entertainment you must not allow this entertainment experience to interfere with your duties as a juror.

Therefore, if 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. Charles & Drake , 414 Md. at 730 , 997 A.2d at 156-57 (emphasis added). The Court of Appeals found that the propounded voir dire question "suggested that the jury's only option was to convict, regardless of whether scientific evidence was adduced." Charles & Drake , 414 Md. at 737 , 997 A.2d at 161 . The Court concluded that the defendants were entitled to a new trial because the language used-the word "convict" especially-poisoned the venire, compelling them to believe their only option was to convict.

Id. Four months later, in Kelly v. State (also a direct appeal), we considered a situation where a trial judge, without objection from the defense trial counsel , asked the prospective venire a question nearly identical to the one administered in Charles & Drake : Now, I'm going to assume, having done this a few times, that many of you watch way too much television, including those so-called realistic crime shows like CSI: New York and CSI: Miami and CSI: Glen Burnie and Law and Order and the rest of it. And I trust that you understand that these crime shows are fiction and fantasy and for your entertainment. And for dramatic effect, they purport to rely upon 'scientific evidence' to convict guilty persons.

While this is certainly acceptable as entertainment, you must not allow your entertainment to interfere with your duties as a juror. Therefore, if you are currently of the opinion that you cannot convict a defendant without 'scientific evidence,' regardless of all of the other evidence in the case and regardless of the instructions that I give you as to the law of the case, please stand. 195 Md. App. 403 , 429, 6 A.3d 396 , 411 (2010), cert. denied 417 Md. 502 , 10 A.3d 1181 (2011) (emphasis added). We held ultimately the issue unpreserved for review because of counsel's failure to object. Kelly , 195 Md. App. at 434 , 6 A.3d at 414 (2010).

We commented, however, that the record "as a whole does not lead to the conclusion that the jurors were under the impression that convicting [Kelly] was the only option." Id. We remarked that "[T]he [trial] court repeatedly told the jury, in both voir dire and during instructions, that they must return a verdict of not guilty if the State did not prove [Kelly's] guilt beyond a reasonable doubt." Id. In McFadden & Miles (yet another direct appeal), a trial judge asked, over defense counsel's objection , the venire during voir dire : I'm going to assume, based on having done this before, that many of you watch way too much television, including the so-called realistic crime shows, like CSI, Miami, and CSI, New York, and CSI, Glen Burnie, Law and Order, and Illegal and Unwarranted and the rest of them. Now, I trust you understand that these crime shows are fiction and fantasy.

And for dramatic effect and for you to stay tuned in, they purport to rely upon 'scientific evidence.' This is certainly entertainment, but you must not allow that entertainment to interfere with the high duty you will have in this case as a juror. Therefore, if 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 instruction I give you as to law, please rise. I see no responses. Okay. 197 Md. App. 238 , 250-51, 13 A.3d 68 , 75 (2011) (emphasis added).

With Charles & Drake finding a similar query inappropriate, our unavoidable conclusion was that McFadden and Miles were "deprived of a fair and impartial jury" because the judge abused his discretion by suggesting to the panel that "convicting [McFadden and Miles] was the only option." McFadden & Miles , 197 Md. App. at 254 , 13 A.3d at 77 (quoting Charles & Drake , 414 Md. at 739 , 997 A.2d at 156-57 ). The year 2012 saw a trinity of reported cases issue from our State appellate courts regarding CSI effect voir dire questions. In Stringfellow , another direct appeal, the trial court put to the venire the following query, "[d]oes any member of the panel believe that the State is required to utilize specific investigative or scientific techniques such as fingerprint examination for the defendant to be found guilty beyond a reasonable doubt?" Stringfellow , 425 Md. at 466 , 42 A.3d at 30 . Defense counsel objected; however, he thereafter accepted the jury panel without exception, thus "fail[ing] to preserve [the propriety of the question] for appellate review." Stringfellow , 425 Md. at 469 , 42 A.3d at 32 .

The Court noted, "had Stringfellow preserved his objection, and assuming that propounding the pre-emptive