State v. Dowdell

MOYLAN, Judge. Although the imprecision makes no difference in this particular case, this appeal illustrates, seemingly for the ¹⁷⁴ thousandth time, the epidemic tendency to wander back and forth across the federal-state boundary with little thought as to which sovereign law is being invoked. The Sixth Amendment to the Constitution of the United States provides, in pertinent part, “in all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” That federal provision was made applicable to the states by being deemed incorporated in the due process clause of the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335 , 83 S.Ct. 792 , 9 L.Ed.2d 799 (1963).

Article 21 of the Maryland Declaration of Rights provides, in pertinent part, “That in all criminal prosecutions, every man hath a right ... to be allowed counsel.” The Court of Appeals has held that there is no distinction between the right to counsel guaranteed by the Sixth Amendment and Article 21 of the Maryland Declaration of Rights. 1 State v. Tichnell, 306 Md. 428, 440 , 509 A.2d 1179, 1185 (1986). Since Gideon v. Wainwright, the federal case law has dominated, if not preempted, the theoretically mutual field. The initial surge of litigation in the wake of Gideon v. Wainwright dealt with the actual or constructive denial of the assistance of counsel altogether. Except on such peripheral questions as state interference with the ability of counsel to render effective assistance, United States v. Cronic, 466 U.S. 648 , 104 S.Ct. 2039 , 80 L.Ed.2d 657 (1984), and a claim that assistance was rendered ineffective by a conflict of interest, Cuylar v. Sullivan, 446 U.S. 335 , 100 S.Ct. 1708 , 64 L.Ed.2d 333 (1980), the Supreme Court never ¹⁷⁵ directly addressed the issue of “actual effectiveness” of counsel until its landmark decision of Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984).

Justice O’Connor, speaking for the majority, pointed out in Strickland that “This Court has not yet had occasion squarely to decide [what] is the proper standard.” 466 U.S. at 684, 104 S.Ct. at 2062. “For these reasons, we granted certiorari to consider the standards by which to judge a contention that the Constitution requires that a criminal judgment be overturned because of the actual ineffective assistance of counsel.” Id. The Strickland opinion then articulated the standards which now control claims of ineffective assistance. The Strickland test is a two-pronged one, which we will discuss in more detail as we apply it to the facts of the present case. Strickland also supplied, moreover, a philosophic overview of the right to effective assistance generally and sound guidelines for judges to employ in assessing claims of ineffective assistance.

The Philosophic Approach The Supreme Court pointed out that the pole star of inquiry is not whether counsel committed a professional error but whether the defendant received a fundamentally fair trial: “The Court has not elaborated on the meaning of the constitutional requirement of effective assistance in the latter class of cases—that is, those presenting claims of ‘actual ineffectiveness.’ In giving meaning to the requirement, however, we must take its purpose—to ensure a fair trial—as the guide. 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. at 2064. The Court subsequently underscored the point that the critical issue is not lawyerly error but the ultimate fairness of the trial itself: ¹⁷⁶ “[T]he purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation, although that is a goal of considerable importance to the legal system. The purpose is simply to ensure that criminal defendants receive a fair trial.” 466 U.S. at 698, ¡L04 S.Ct. at 2070.

The Supreme Court then supplied the American judiciary with the proper attitudinal approach for measuring ineffective assistance claims. Judges are admonished not to fall into the tempting habit of pointing out, with the benefit of hindsight, various possible mistakes made by trial counsel and then speculating that such mistakes may have affected the outcome: “Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to secondguess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.” 466 U.S. at 689, 104 S.Ct. at 2065. By way of a further guideline for resolving the marginal or ambiguous situation, the Supreme Court mandated not simply a “presumption” but a “strong presumption” that the performance falls within the “wide” range of reasonably acceptable conduct: “Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id.

Our own Court of Appeals has fully endorsed this attitudinal approach to claims of ineffective assistance. State v. Tichnell, supra, 306 Md. at 441 , 509 A.2d at 1187 ; Harris v. State, 303 Md. 685 , 698 n. 7, 496 A.2d 1074 , 1080 n. 7 ¹⁷⁷ (1985). With that mind-set firmly before us, we turn to the case at hand. The Present Case The appellee, Joseph Dowdell, a/k/a Claude Dowdell, was originally convicted in the then Criminal Court of Baltimore of rape in the first degree.

He was sentenced to life imprisonment. That sentence was, moreover, consecutive to other sentences that had previously been imposed upon other convictions. We affirmed the rape conviction in an unreported per curiam opinion, Dowdell v. State, No. 1528, September Term, 1979, filed November 30,1980. The Court of Appeals denied certiorari. 289 Md. 735 (1981).

Dowdell subsequently filed a petition for post-conviction relief. Among numerous other allegations, he claimed that he had been denied “effective assistance of counsel.” As Chief Judge Gilbert described in our subsequent reported decision of State v. Dowdell, 55 Md.App. 512 , 464 A.2d 1089 (1983), that post-conviction proceeding was heard before then Judge William H. Murphy, Jr. In an “Opinion and Order” dated May 4, 1983, Judge Murphy stated that Dow-dell had been “denied a fair trial by the incompetence of his trial counsel.” As we pointed out in our reported State v. Dowdell, however, the critical order was not received by the clerk’s office until May 12, 1983, and Judge Murphy had resigned from the bench at noon on the preceding May 4. The decision by Judge Murphy was, therefore, a nullity and we remanded the case for further proceedings. The present post-conviction petition was filed and a hearing was held by the Circuit Court for Baltimore City on September 18, 1984.

Counsel for Dowdell and the State stipulated that the record before former Judge Murphy would constitute the evidence upon which the present post-conviction petition would be decided. The claim of ineffective assistance was a narrow one. The jury trial of the rape case began on November 2, 1979. David Eaton, Esquire, was assigned the case by the Public ¹⁷⁸ Defender’s Office on October 24, 1979, eight days before trial.

He interviewed Dowdell on- that very day and was informed by his client of an alibi defense. The claimed ineffectiveness of assistance is that counsel did not more aggressively and successfully pursue a postponement of the trial date to allow the defense more time to substantiate the alibi. In terms of trying to substantiate it, the alibi had a very phantom, will-o’-the-wisp quality. Dowdell had successfully escaped from the Jessup Correctional Facility on May 26, 1978, the day before the rape in question.

Dowdell informed Mr. Eaton that as part of the escape, he had gotten a ride to Washington, D.C. with visitors from the Jessup facility; the names of those visitors were not furnished. Dowdell claimed that he spent the night in a hotel in Washington, but he was unable to remember the name or the location of the hotel. Dowdell claimed that on the following day (the day of the rape), he purchased an American Airlines ticket under an assumed name and flew to Chicago between 3 and 4 P.M.; he could not remember the assumed name under which he allegedly purchased the ticket. He claimed that he travelled from Chicago to Gary, Indiana to visit his family; he did not furnish the names or addresses of the family members he allegedly visited.

There was a decidedly elusive quality to the alibi. Nonetheless, Mr. Eaton persevered. On the morning of trial, he sought a postponement from the Administrative Judge, Robert L. Karwacki. He informed Judge Karwacki of the status of defense preparations and the reason for requesting the postponement.

Judge Karwacki denied the request. Mr. Eaton renewed the request for postponement before Judge David Ross, who was to preside at the trial on the merits. In support of his request, Mr. Eaton made the following proffer: “Your Honor, at this time I would like to place certain matters on the record with regard to the defense and preparation thereof, and in connection with this case. I received this case for trial on October 24th, and was ¹⁷⁹ notified that it was scheduled for trial today, which is November 1, 1979.

On October 24th, I went to the Baltimore City Jail and interviewed the defendant, Mr. Dowdell. Mr. Dowdell indicated to me that a defense he wished to raise was in the nature of an alibi defense, and the scope of that defense placed him in another city, and also placed him upon one of the national airlines during that time, which would have made it impossible for him to have been in the City of Baltimore for the commission of these offenses. After receiving that information from Mr. Dowdell, my assistant, Jeanette Phillips, has made contact with that airline and has proceeded with the procedure of checking the airline to find out if a ticket was purchased at the time and place mentioned to me by the defendant so that such information can corroborate the alibi defense of the defendant. In addition to that, the defendant has indicated that on the night before the alleged offense, he spent the night in a hotel in another city, and we are in the process of attempting to verify the fact that he was in another city on the night before.

Now these investigations are still underway and the airline has indicated to my assistant, Ms. Phillips, that it would need a minimum of 10 days to two weeks to procure the necessary information. For that reason, we are not prepared for trial at this time, and [accordingly] I put in a request for postponement—continuation of the case to give me time to obtain that information. The postponement request was denied by Judge Karwacki and at this time, in view of the fact that I am not fully prepared for trial, and in view of the seriousness of this case, I would ask this court to grant a continuance in order to give us a chance to obtain the necessary documents from the airline and from the hotel.” Judge Ross denied the request for a continuance. He gave as his primary reason for the denial the fact that the ¹⁸⁰ same request had been before the administrative judge earlier that day and had been denied.

In his post-conviction memorandum and order, the hearing judge found counsel’s performance to have been inadequate because “it is clear that counsel not only erred preparing and presenting this postponement request, he failed to effectuate a record from which the appellate court could determine the facts involving the postponement request.” The judge went on to find that the failure to obtain a postponement and the consequent inability to substantiate the alibi defense “was tantamount to no defense.” In terms of prejudicial effect, the hearing judge concluded, “It is impossible to say what effect, if any, the evidence referred to would have had upon the ultimate verdict. But it was so interrelated to the critical issues that its absence due to lack of preparation deprived the Petitioner of a fair trial.” We reverse. We hold that the judgment of the post-conviction hearing judge was erroneous in several different regards, any one of which would mandate the reversal. The Procedural Flaw In the first place, the wrong test was used for measuring ineffective assistance of counsel.

The test used by the court was not the now clearly controlling test according to Strickland v. Washington but a pre-Strickland test, now obsolete, articulated by this Court in Ward v. State, 52 Md.App. 88 , 447 A.2d 101 (1982). In State v. Tichnell, supra, the Court of Appeals reversed a similar finding of ineffective assistance for precisely the same procedural flaw. After contrasting in some detail the distinction between the Strickland test and the pre-Strickland standard of Ward v. State, Chief Judge Murphy noted, at 306 Md. 450 , 509 A.2d 1190 : “In so concluding, the post conviction court, while citing Strickland , made no analysis of the constitutional standards set forth in that case for determining whether counsel rendered ineffective assistance to Tichnell. In ¹⁸¹ stead, it relied upon the pre-Strickland cases of Ward v. State, ... and State v. Lloyd [ 48 Md.App. 535 , 429 A.2d 244 (1981) ], ... as containing the law applicable to Tichnell’s claim of ineffective assistance of counsel.” (Citations omitted).

The performance of counsel in this case was measured according to a legal standard which is no longer controlling. The Strickland Test The Strickland test itself is very straightforward. It states that a reversal on the grounds of ineffective assistance is not appropriate unless the defense has carried the burden of showing both 1) a deficient performance and 2) prejudice to the defense. Justice O’Connor stated the test,