State v. Gross

⁵³⁵ MOYLAN, Judge. “In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” .. . The Sixth Amendment “The right to counsel is the right to the effective assistance of counsel.” ... McMann v. Richardson, 397 U.S. 759 , 771 n.14, 397 U.S. 759 , 90 S.Ct. 1441 , 25 L.Ed.2d 763 (1970) At the end of a seven-day trial on December 8, 1994, the appellee, Alvin Winslow Gross, was convicted by an Anne Arundel County jury of 1) first-degree murder, 2) first-degree rape, 3) kidnapping, and 4) the use of a handgun in the commission of a crime of violence. He was sentenced to life without the possibility of parole for murder, 25 years concurrent for rape, 25 years concurrent for kidnapping, and 15 years concurrent for the handgun violation.

In an unreported opinion, this Court 1) held that the evidence was insufficient to sustain' Gross’s kidnapping conviction, 2) ordered the rape conviction merged into the first-degree felony murder conviction, and 3) affirmed the murder and handgun convictions. Gross v. St,ate, No. 501, Sept. Term, 1995, 108 Md.App. 720 (filed 2/26/96). A Petition for a Writ of Certiorari was denied by the Court of Appeals. 343 Md. 333 , 681 A.2d 68 (1996). On August 18, 1997, Gross filed a Petition for Post-Conviction Relief in the Circuit Court for Anne Arundel County.

In that petition, he cited numerous actions by his attorney which allegedly constituted ineffective assistance of counsel at both the trial and appellate levels. 1 A hearing was held on the petition and on June 7, 1999, the Circuit Court filed a 37-page Memorandum Opinion and Order granting Gross a new trial. In that Opinion, the hearing judge found: ⁵³⁶ 1. that trial counsel was ineffective for failing to object to the use of DNA PCR testing; 2. that trial counsel was ineffective for failing to investigate, hire, and properly prepare a qualified competent expert in the field of DNA PCR testing; 3. that trial counsel was ineffective for failing to object to the introduction of DNA PCR evidence absent required population genetics statistics; 4. that the cumulative effect of trial counsel’s errors denied Gross effective assistance of counsel; 5. that appellate counsel was ineffective for failing to appeal the trial court’s ruling on the Motion to Suppress ' the DNA PCR evidence; and 6. that appellate counsel was ineffective for failing to raise on direct appeal the trial court’s refusal to accept Dr. Walter Rowe as an expert in DNA PCR evidence. The State challenges each of those six findings. We will, however, restructure the issue before us.

The first three of those findings constitute, collectively, the basis for the Circuit Court’s ruling that Gross was unconstitutionally denied the effective assistance of trial counsel. The so-called fourth “finding” is nothing more than a legal conclusion based on the cumulative effect of the preceding three actual findings. The correctness of that ruling as to the ineffectiveness of trial counsel is one of the two issues before us for decision. The final two findings constitute, collectively, the basis for the Circuit Court’s ruling that Gross was unconstitutionally denied the effective assistance of appellate counsel.

The correctness of that ruling is the second issue before us for decision. THE FACTUAL BACKGROUND A. The Corpus Delicti At approximately 6:45 A.M. on Sunday morning, December 19, 1993, a resident of Southern Anne Arundel County was returning to his home after having driven to the nearby town ⁵³⁷ of Deale to pick up a Sunday paper and some doughnuts. In a rural cornfield near Leitch Road, he spotted what appeared to be a lifeless human body. After summoning help from a nearby farm, he confirmed that what he had spotted was the body of a human female.

He called 911. Although not identified for several days, the body was that of Margaret Ruth (“Peggy”) Courson, a 26-year-old woman living in a boarding house near the City Dock in Annapolis, although her parents and her three-year-old child lived in Florida. She suffered from acute alcoholism and the autopsy revealed that her blood alcohol content was .34%. The blood alcohol content of the urine was .42%.

When her body was found, she was nude from the waist up, her underpants were wrapped around one leg; she had on no shoes, no blouse, no bra, and no coat. She had, moreover, no purse nor any other indication of her identity. When a picture of her unidentified body ran in the local newspaper, a friend recognized it as “Margaret Courson.” The cause of death was four gunshot wounds, all at close range, two to the neck and two to the chest. Subsequent investigation revealed that Peggy Courson had been denied entrance to her apartment house at approximately 2 A.M. by her landlady because of her drunken condition.

As a bartender was leaving Armadillo’s in the City Dock area after closing up at approximately 3:30 A.M., he encountered Peggy Courson, who appeared to be very confused and very drunk. When he last saw her, she was wandering off “aimlessly,” in the direction of Middleton’s Tavern. He was the last person, other than her murderer or murderers, known to have seen her alive. The cornfield where Peggy Courson’s body was found three hours later was approximately twenty miles away from the City Dock area of downtown Annapolis.

Twenty-five days were to go by before the rest of Peggy Courson’s clothing was found. On January 13, a south Anne Arundel County farmer discovered some suspicious items in a field between his house and his barn and immediately called police. At a spot in a field approximately fifty feet from ⁵³⁸ Sudley Road, an Anne Arundel County officer discovered a pair of fur-lined black boots belonging to Peggy Courson. Near the boots was a black suede or cowhide purse.

In the purse were, inter alia, a pair of white socks, a brassiere, and a blouse. The field in which these personal items were found was located approximately five miles from where Peggy Cour-son’s body was found. Thus far, the evidence described was offered to prove the corpus delicti of the crimes committed against Peggy Courson and was largely undisputed. B. Investigative Focus Initially there was nothing that pointed to any particular person as the criminal agent.

Ultimately, there was abundant evidence to establish the criminal agency of Gross. To place that evidence of criminal agency in context, however, it will be helpful, as it was in the opinion of this Court resolving Gross’s direct appeal, to go outside of the evidence offered on the merits of guilt or innocence and to look at the application for a series of search warrants sworn to by Detective Keith D. Williams and admitted at the pre-trial hearing. In response to media releases on December 20, 1993, the day after Peggy Courson’s body was found, the police received several telephone calls identifying Gross as the murderer. On December 31, they received another anonymous call stating that Sidney Scott, Jr. and two other black males were involved in the murder.

On January 6 and 7, 1994, the police spoke to three persons, unidentified by the police in the warrant application. Two of those persons informed them that Gross had committed the murder with Sidney Scott present. The third of those informants implicated the appellant and two other named persons. Based on information provided by Scott and by the Unidentified informants, the police obtained search warrants for Gross’s person, his car, and his residence, all of which were executed on January 10.

Gross was also arrested and transported to the police station where, upon the advice of counsel, ⁵³⁹ he refused to make a statement. Samples of Gross’s blood, hair, and saliva were obtained and were submitted to the crime laboratory. C. The Physical Evidence From Gross’s Car The evidence establishing Gross’s criminal agency fell into five categories: three of them extremely strong, one of more marginal strength, and one of peripheral significance. Any of the three strong categories would have been enough, standing alone, to satisfy the State’s burden of production.

Whether the fourth category, standing alone, would have constituted a prima facie case is more problematic. The fifth category, standing alone, would clearly not have constituted legally sufficient evidence to take the case against Gross to the jury. The first extremely strong category of proof consisted of physical evidence found in the January 10 search of Gross’s automobile. It unequivocally placed the victim, Peggy Cour-son, in Gross’s car.

Some of it, moreover, circumstantially placed her in Gross’s car at a time close to her death. Behind the back seat, between it and the hatchback area, was found a notebook. The handwriting in the notebook matched that of Peggy Courson. On nine separate pages of the notebook, moreover, were found Peggy Courson’s fingerprints.

An FBI hair and fiber expert testified that two of Peggy Courson’s head hairs were found in the automobile. There was also in Gross’s automobile one of Peggy Courson’s pubic hairs. The notebook and the three hairs from the body of Peggy Courson were strong evidence that she had been in Gross’s automobile, although they could not establish how recent that presence had been. The FBI expert also testified, however, as to various carpet fibers from the floor mats of Gross’s automobile and also as to fibers from a blanket found in Gross’s automobile that were found on various items of clothing worn by Peggy Courson.

Those fibers did more than establish her presence in the automobile at some undesignated time. Significantly, the fibers were found on articles of clothing worn by Peggy ⁵⁴⁰ Courson on the night of her death. Fibers were found on Peggy Courson’s coat, on her jeans, and on her panties, all of which were found along with her body. It was the coat she was wearing on the night she died.

They were the jeans she was wearing on the night she died. They were the panties she was wearing on the night she died. Carpet fibers from the car were also found in the combings of her pubic hair. Fibers were also found on three of the items of her clothing found twenty-five days later and five miles away: on her boots, on her socks, and on her blouse.

They were the boots she was wearing on the night she died. They were the socks she was wearing on the night she died. It was the blouse she was wearing on the night she died. D. The Confession to Troy King Devastating proof of Gross’s guilt was the unsolicited confession he made to Troy King.

Troy King was a young man without a criminal record, had been a close personal friend of Gross’s for approximately seven years, and was not in any way a suspect in the case. As “best friends,” he and Gross got together socially “one or two days a week,” and talked on the phone at least several times a week. At sometime after Christmas but before New Year’s Eve, Troy King called Gross. King described how Gross began the conversation by saying that “he was doing crazy things lately.” Gross read to King a newspaper article describing Peggy Courson’s murder.

King testified that Gross “told me that him and Sidney were involved in it.” King testified to the core of Gross’s incriminating conversation: I talked to him on the telephone, and he had told me that he had did some strange things lately. And I had asked him what, and he had said that him and Sidney [Scott] had went out one night, riding around, and he was at a pay phone in Annapolis, and there was a drunk lady or whatever Sidney had got to talking to and got her in the truck while he was on the pay phone. And then after he got off the pay phone, he got in the truck, and him and Sidney drove around with her. ⁵⁴¹ Q: Okay. And what else did he say about that night?

A: That they rode around for awhile. They got to some road, he didn’t say, and he was going to let her out, and supposedly Sidney shot her first and then Alvin [Gross] said that he shot her next. Q: And did Alvin say anything about why he shot her? A: He told me that he felt like he had to.

Q: And why did ... did he explain that to you? A: Because that ... they was riding around and that Sidney was in the back seat with her, and that ... he was forcing [himself] on the girl, whatever ... Q: And what ... what do you mean by that? A: As far as sex.

Q: Okay. A: And that she knew, you know, [that] Alvin had drove, had knew his name, ’cause Sidney had said it, and he felt like he had to. Q: And did he say why he felt he had to kill her? A: Because if he didn’t that she could go back to the cops or whatever and say that they had picked her up, and Sidney had raped her or whatever, and they could have got in trouble for it.

Or Sidney had shot her also, and it could be attempted murder. Q: So Alvin felt he had to do what? A: Kill her. Q: Did Alvin say where he left the body?

A: No. E. Gross’s Testimonial Acknowledgment of Contact With the Victim Gross could not leave unchallenged the undisputed evidence from the FBI’s hair and fiber examiner that Peggy Courson had been in his automobile. He took the stand in his own defense and his testimony, though intended to be exculpatory, was heavy with inculpatory potential. His taking of the stand ⁵⁴² was a desperate but necessary effort to put some kind of exculpatory spin on that evidence. The gist of Gross’s testimony was that he picked up Peggy Courson, that she was in his car for several hours, and that they had consensual sexual intercourse, but he placed those events as having occurred on the Friday night/Saturday morning of December 17/18, 1993, a full twenty-four hours before Peggy Courson was murdered.

He acknowledged that he had never, before the night of December 17/18, had a date with Peggy Courson and that she had never before been in his automobile. He could not even testify to any actual contact with her before that night. He indicated, however, that he had heard others “talk about her” and knew something about her general reputation. Gross’s story was that on that Friday night he had attended a local basketball game and then met with a number of friends at a McDonald’s restaurant in Edgewater in suburban Annapolis.

After leaving his friends, he drove around looking for some other acquaintances with no success. Shortly after midnight, he was still “cruising” the streets of Annapolis because he did not yet want to go home and go to bed. It was at that point that he spotted Peggy Courson, whom he knew by sight at least, walking near West Street, a few blocks away from the City Dock area. He initiated conversation with her and she got into his car.

He could tell that she was clearly drunk. He drove her to a wooded area several miles north of Annapolis. They there proceeded to drink “a few beers.” She ultimately invited him into the back of his car “to show her appreciation.” By the time he joined her in the back of the car, she was naked. She initially performed fellatio on him.

They then engaged briefly in sexual intercourse, but he soon lost interest. At her request, he then returned her to the area of the Annapolis City Dock and dropped her off. Recognizing the unquestioned prerogative of a jury to reject a story in part but to accept it in other part, we note that it would have been very easy for the jury in this case simply to ⁵⁴³ have transferred Gross’s inculpatory acknowledgments from the wee hours of Saturday morning to the wee hours of Sunday morning. Although he knew of Peggy Courson as a young and alcoholic woman wandering the streets of Annapolis, he was, in effect, a stranger to her.

He testified that at a time shortly before her death he picked her up, drove her in his car to a secluded wooded area, and had sexual intercourse with her. Those were damning admissions, notwithstanding his effort to distance that acknowledged conduct from the time of the murder by twenty-four hours. Gross’s acknowledged conduct of early Saturday morning fits easily into the scenario of what probably preceded the murder of early Sunday morning. A young and very drunken woman wandering empty streets in the wee hours of a winter morning is easily identifiable and helpless prey on any day of the week.

To “pick her up” for sexual exploitation would be easy on either of the weekend mornings. To drive her to a deserted wooded area would be the logical next step. Putting aside his possibly self-serving testimony as to the day of the week, Gross’s acknowledged actions were compatible with the likely pre-murder scenario. The physical evidence as to where the fibers from Gross’s automobile were found on the body and on the clothing of Peggy Courson on Sunday morning makes her presence in the automobile on Saturday morning instead of Sunday morning highly improbable.

For the carpet fiber to have been in her pubic hair since early Saturday morning would essentially have required that she neither bathed nor showered between Friday night and Saturday night. For the carpet fibers to have been on her clothes since early Saturday morning would have required that between Friday night and Saturday night she had not changed her blouse, her socks, or her panties, let alone her jeans, her shoes, and her coat'. Her landlady testified that she was at home until 11 o’clock on Saturday night. Collectively, the fibers on six different categories of clothing indicated that between the time she was in Gross’s automobile ⁵⁴⁴ and the time she died, Peggy Courson had not changed any of those six articles of clothing.

The jury, putting the pieces together for itself, obviously believed a lot of what Gross said, but believed it happened twenty-four hours later than he said it happened. F. The Possible Murder Weapon and a Further Admission A fourth category of proof was significantly damaging, although no ultimate ballistic “match” could be made. Four bullets were taken from the body of Peggy Courson. The firearms identification expert for the Maryland State Police Crime Laboratory testified that they were so mutilated from having passed through bony tissue that they were not susceptible to standard ballistic identification comparisons.

He was nonetheless able to testify that they were .32 caliber bullets of a type that would be fired from a revolver made by one of five probable manufacturers. One of those manufacturing companies would be Rossi. The police ultimately recovered from Troy King a Rossi revolver, which had been turned over to him by Gross in early January of 1994. Although the ballistics examiner could not say that the four bullets in question had been fired by Gross’s revolver, he did testify that they were compatible with it: The conclusion that I ... have reached is that the bullets are of the same classification as to the caliber, class characteristics, and measurements to have been fired from ... a Rossi revolver, such as the one submitted.

Gross’s close friend Troy King testified that at sometime after New Year’s Day, he and Gross and King’s cousin, Charles Carpenter, all went out drinking in Georgetown. Both Troy King and Charles Carpenter testified that as the three of them were leaving the Georgetown area that evening, Gross reached either into the glove compartment of his car or into a door panel and produced the .32 caliber Rossi revolver. He handed it to King and asked King to keep it for him. ⁵⁴⁵ In addition to having to offer some explanation for the hairs and fibers linking Peggy Courson to his automobile, a necessity to place some spin on his possession of the .32 Rossi revolver was also part of the obvious motivation for Gross to take the stand in his own defense. Gross testified that during the month of December he had received the gun from Sidney Scott as an unsolicited gift.

He offered no explanation, however, as to why Scott gave him the gun. He further testified that he had no use for the gun and, therefore, subsequently gave it to Troy King as a gift because Troy King was interested in guns and collected guns. As proof of guilt, the ballistics evidence, in and of itself, would not have been legally sufficient to send the case to the jury because of the inability of the examiner to make a “match.” The totality of evidence surrounding the gun, on the other hand, had far more significance than did the ballistics examination standing alone. Both King and Carpenter testified that as Gross gave the revolver to King he said, “Be careful with it because it already had one life on it.” The totality of evidence surrounding the gun, therefore, was 1) that the revolver was of the type that could have fired the bullets taken from Peggy Courson’s body; 2) that at about the time the investigation was beginning to focus on Gross, Gross felt some obvious desire to get rid of the weapon; and 3) that Gross acknowledged to King and Carpenter that someone had been killed with that gun.

G. The Presently Unexceptionable Evidence of Guilt Collectively, all of the evidence thus far discussed constituted overwhelming proof of Gross’s guilt. None of the contentions raised by Gross in his petition for post-conviction relief on the basis of the ineffective assistance of counsel involves in any way the evidence of guilt thus far discussed. Every contention and subcontention alleging ineffective assistance of counsel, at both the trial and appellate levels, concerns only the fifth and more peripheral category of evidence yet to be discussed. That category is the DNA PCR evidence showing ⁵⁴⁶ that Gross could not be excluded from the class of persons who might have been the donor of a DNA specimen found on the body of Peggy Courson.

H. The DNA PCR Evidence A blood sample was taken from Gross in order to examine it and to establish his known DNA pattern. A vaginal swab was taken from the body of Peggy Courson and it was examined for possible DNA traces. Melissa Weber, a Senior Molecular Biologist for the Cellmark Diagnostic Laboratory, examined the two specimens to see if Gross had possibly left his DNA “fingerprint” on the body of Peggy Courson. Almost all of the Maryland appellate decisions dealing with DNA evidence involve DNA testing done by the Cellmark Diagnostic Laboratory.

Invariably, the expert witnesses appearing in the opinions are Melissa Weber and Charlotte Word, both senior-level scientists working for Cellmark. To understand the significance (or more pertinently, perhaps, the relative insignificance) of what the examination revealed in this case, it is necessary to appreciate the difference between DNA RFLP analysis and DNA PCR analysis. “RFLP” stands for the Restriction Fragment Length Polymorphism type of DNA analysis. Armstead v. State, 342 Md. 38, 53 , 673 A.2d 221 , referred to it in 1996 as the “most widely used technique at present.” It, as opposed to the PCR technique, requires a bigger sample quantitatively and a better sample qualitatively in order to produce an acceptable result. It is capable, however, of yielding a unique “match,” pinpointing a particular suspect as the donor of the DNA left at the crime scene or on the body of the victim.

As admissible evidence it received the imprimatur of the Maryland Legislature in 1991 (Ch. 631 of the Acts of 1991),’ now codified as Cts. & Jud. Proc., § 10-915(a)(3). Most of the Maryland cases involving DNA are cases where the RFLP analysis was used. Yorke v. State, 315 Md. 578 , 556 A.2d 230 (1989); Cobey v. State, 80 Md.App. 31 , 559 A.2d 391 (1989); Jackson v. State, 92 Md.App. 304, 324-25 , 608 A.2d 782 (1992); ⁵⁴⁷ Keirsey v. State, 106 Md.App. 551 , 665 A.2d 700 (1995); Armstead v. State, 342 Md. 38 , 673 A.2d 221 (1996).

The newer and thus far less probative type of DNA analysis is identified as “PCR analysis” and takes its name from a technique known as Polymerase Chain Reaction. In a footnote, Armstead v. State, 342 Md. at 53, n. 9 , 673 A.2d 221 , referred to it as “a newer method” that “is particularly helpful in analyzing DNA where there is a very small evidence sample to be tested.” It is a type of test that may be employed with a small DNA sample to work with and where the quality of the DNA sample is not as good. In its present development, however, it will not yield a “match,” pinning down with virtual certainty the identity of the DNA donor. In its present state of development, it can do no more than “exclude” or “not exclude” a particular person from a large class of persons who might have been the donor of the DNA in question. 2 Only two reported opinions involved cases where DNA PCR analysis was actually used.

Williams v. State, 342 Md. 724, 744-52 , 679 A.2d 1106 (1996); Chase v. State, 120 Md.App. 141, 153 , 706 A.2d 613 (1998). In Williams v. State, 342 Md. at 744, 679 A.2d 1106 , Judge Chasanow explained the important differences between the two forms of DNA analysis: [T]he DNA evidence was obtained using a DNA testing procedure called “polymerase chain reaction” (PCR). PCR testing differs from a more established form of DNA testing, known as “restriction fragment length polymorphism” (RFLP).... RFLP testing can provide “a very specific match betioeen two samples, ” PCR testing can only “narrow doivn a potential number of donors to a certain group.” ... [WJhile RFLP testing requires a large sample of material, PCR testing can be done on much smaller samples ⁵⁴⁸ because it isolates and then replicates the DNA before typing it.

(Footnote omitted; emphasis supplied). Melissa Weber, of Cellmark Diagnostic, was accepted as an expert witness on DNA analysis. She described the difference between the two testing techniques: There are two different kinds of testing we can do to look at a person’s DNA; one is called RFLP testing and one is called PCR testing. RFLP testing is a type of test many of you may have heard of where the results are very, very conclusive.

If you have a match between two samples, there’s a very high probability often that that person is the source of that DNA. For PCR testing, the DNA that we’re looking at is not as exclusive. Some people can share certain forms of DNA that we look at for the PCR testing. So, the most conclusive we can get with PCR testing is either that someone is excluded or cannot be excluded.

It’s much less of an identification tool than the RFLP testing is. So, the RFLP testing is much more specific as far as an identification than the PCR testing is. (Emphasis supplied). When asked to explain why a laboratory would sometimes use “RFLP testing that is very conclusive” and at other times use “PCR testing that is less conclusive,” she explained: Because the RFLP testing is more conclusive, usually that’s the more desired type of test that people like us to do.

However, for RFLP testing you need a lot of DNA. You need a good quantity of DNA to perform the tests. And you also need DNA that’s in very good shape; that hasn’t been broken down in any way due to time or the environment. So, while RFLP is a much more specific kind of test, it needs a great amount both in quantity and quality of DNA to perform.

The PCR test is a less specific kind of test but it will work with very, very small amounts of DNA. So, if your sample size is very small or limited, PCR testing is what you’ll need to use. ⁵⁴⁹ The contrast can be explained by [the fact that] for RFLP testing, you would need a blood stain about the size of a nickel or a quarter and for PCR testing you can use a blood stain about the size of the head of a pin. That’s the kind of difference in the amount of DNA that’s required for each test. (Emphasis supplied).

Dr. Charlotte Word, the other expert witness from Cell-mark Diagnostic, confirmed that whereas DNA RFLP analysis will produce a “match,” identifying a suspect with certainty, DNA PCR analysis does not even presume to suggest a “match”: [W]hen you do RFLP testing, you can actually state that you have a match with regard to DNA; that we have a specific match of a known and unknown sample. A: Are you using match in the sense of a unique identification? Q: Yes. Yes.

A: Yes, if we can test enough sites of the DNA with RFLP testing, we have the ability to uniquely identify an individual to the exclusion of all other people in the world, basically. Q: All right. But with PCR testing, you’re not able to do that. Is that correct?

A: Not with the level of testing that we have right now, no. (Emphasis supplied). Melissa Weber went on to testify that although initially a DNA RFLP analysis was attempted, “we didn’t get any results” because “there was not enough DNA present to obtain results with the RFLP method.” The DNA PCR analysis was then used and as a result of it, all that could be testified to was that Gross could not be excluded from the class of persons who could possibly have been a donor of the DNA in question. There was no suggestion that Gross was “identified” as someone who had been in physical contact with Peggy Courson.

If the establishment of his criminal agency had depended on the DNA PCR analysis, the State clearly ⁵⁵⁰ would not have met its burden of production required to take the case to the jury. All of the claims of ineffective assistance of counsel, both trial and appellate, made by Gross and ruled on in his favor on his Petition for Post-Conviction Relief, revolve about the admission into evidence of this DNA PCR analysis with its conclusion that he was “not excluded” from those who could have been the donor of the DNA sample found in the vaginal swab of Peggy Courson. It will be remembered, of course, that Gross took the stand and testified to having had sexual intercourse with Peggy Courson within a period of no more than twenty-four to twenty-six hours preceding her death. STANDARD OF REVIEW FOR EFFECTIVENESS OF COUNSEL At the hearing on the Petition for Post-Conviction Relief, the circuit court ruled that Gross had been denied the effective assistance of counsel both at the trial level and at the appellate level.

It provided alternative relief. Our review of the findings of ineffectiveness at those respective levels requires separate analyses. 1. Effectiveness of Trial 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 . A number of Maryland cases, incidentally, have discussed and applied Strickland and its two-pronged test. Wiggins v. ⁵⁵¹ State, 352 Md. 580, 600-03 , 724 A.2d 1 (1999); Oken v. State, 343 Md. 256, 283-95 , 681 A.2d 30 (1996); Gilliam v. State, 331 Md. 651, 664-86 , 629 A.2d 685 (1993); State v. Thomas, 328 Md. 541 , 616 A.2d 365 (1992); Williams v. State, 326 Md. 367 , 605 A.2d 103 (1992); State v. Thomas, 325 Md. 160, 169-73, 178-88 , 599 A.2d 1171 (1992); Bowers v. State, 320 Md. 416 , 578 A.2d 734 (1990); State v. Colvin, 314 Md. 1, 5-7, 14-19 , 548 A.2d 506 (1988); State v. Calhoun, 306 Md. 692, 728-38 , 511 A.2d 461 (1986); State v. Tichnell, 306 Md. 428, 433-57 , 509 A.2d 1179 (1986); Harris v. State, 303 Md. 685 , 496 A.2d 1074 (1985); State v. Purvey, 129 Md.App. 1, 5-27 , 740 A.2d 54 (1999), cert. denied 357 Md. 483 , 745 A.2d 437 (2000), and Cirincione v. State, 119 Md.App. 471, 483-509 , 705 A.2d 96 , cert. denied 350 Md. 275 , 711 A.2d 868 (1998). A. The Performance Component With respect to the performance component — the assessment of whether trial counsel’s representation was so deficient as to undermine the adversarial process — Strickland pointed out: First, the defendant must show that counsel’s performance was deficient.

This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” gtiaranteed the defendant by the Sixth Amendment. 466 U.S. at 687 , 104 S.Ct. 2052 (emphasis supplied). Strickland then admonished that counsel is not to be measured against an ideal standard but is to be assessed in terms of whether his lawyerly assistance was “reasonable” and that that is to be measured “under prevailing professional norms”: As all the Federal Courts of Appeals have now held, the proper standard for attorney performance is that of reasonably effective assistance. ... When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness. ⁵⁵² The proper measure of attorney performance remains simply reasonableness under prevailing professional norms. 466 U.S. at 687-88 , 104 S.Ct. 2052 (citations omitted; emphasis supplied). It was in this regard that Gilliam v. State, 331 Md. 651, 665-66 , 629 A.2d 685 (1993), carefully pointed out: Strickland v. Washington requires that defense counsel’s representation meet “an objective standard of reasonableness.” “The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” The Sixth Amendment does not require the best possible defense or that every attorney render a perfect defense.

In order to be deficient, counsel’s acts or omissions must be “outside the wide range of professionally competent assistance.” “‘[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.” ’ ” The courts should not, aided by hindsight, second guess counsel’s decisions. (Citations omitted; emphasis supplied). In guarding against too facile a finding of deficient performance by trial counsel, the Supreme Court circumscribed after-the-fact review, by post-conviction court and appellate court alike, with a number of cautionary admonitions. One of those is that “judicial scrutiny of counsel’s performance must be highly deferential” and that reviewing courts should be especially careful not to judge a performance through the distorting lens of hindsight.

It is all too tempting for a defendant to second guess 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. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hind ⁵⁵³ sight, to reconstruct the circumstances of counsel’s challenged conduct,' and to evaluate the conduct from counsel’s perspective at the time. 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.” 466 U.S. at 689 , 104 S.Ct. 2052 (citations omitted; emphasis supplied). The Maryland Court of Appeals has similarly warned reviewing courts to be wary of the distorting effect of hindsight.

In State v. Calhoun, 306 Md. 692, 735 , 511 A.2d 461 (1986), Judge Smith pointed out that counsel is under no duty to anticipate a change in the case law: [A]s Strickland makes plain, counsel must be judged upon the situation as it existed at the time of trial. We had not at that time decided Scott, 297 Md. 235 , 465 A.2d 1126 . There was no duty on counsel to foresee that we might hold as we held in that case. (Emphasis supplied).

Cirincione v. State, 119 Md.App. 471, 492 , 705 A.2d 96 cert. denied, 350 Md. 275 , 711 A.2d 868 (1998), similarly cautioned against judgment by hindsight: To claim that presenting this additional testimony would have been more persuasive is an appeal to the same “distorting effects of hindsight” which we are called upon to eliminate in our assessment of trial counsel’s performance. Strickland, 466 U.S. at 689 [, 104 S.Ct. 2052 ], We cannot know whether a different trial strategy would have led to a different result, but the fact that the selected strategy was ultimately unsuccessful does not mean that it was an unreasonable choice. (Emphasis supplied). Strickland v. Washington also made it clear that there is a strong presumption that counsel’s decisions were made in the ⁵⁵⁴ exercise of reasonable professional judgment and that the burden is on the defendant to overcome that presumption: [A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.

A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.... [T]he court should recognize that counsel is strongly presumed to have ren- • dered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. (Emphasis supplied). In Oken v. State, 343 Md. 256, 283 , 681 A.2d 30 (1996), Judge Raker confirmed that Maryland recognizes and applies that strong presumption as to the effectiveness of counsel’s performance: To establish that a deficiency existed, Oken must demonstrate that his counsel’s acts or omissions were the result of unreasonable professional judgment and that counsel’s performance, given all the circumstances, fell below an objective standard of reasonableness considering prevailing professional norms.

Oken must also overcome the presumption that the challenged action might, under the circumstances, be considered sound trial strategy. (Citations omitted; emphasis supplied). B. The Prejudice Component Strickland v. Washington then carefully pointed out that even if an “error by counsel” is demonstrated, such an error, “even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” 466 U.S. at 691 , 104 S.Ct. 2052 . ⁵⁵⁵ There is an affirmative burden on a defendant to prove prejudice: [Ijneffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice.... 466 U.S. at 693 , 104 S.Ct. 2052 . Strickland requires that a defendant do more than show that an error by counsel “could have influenced the outcome” of the case: Even if a defendant shows that particular errors of counsel were unreasonable, ... the defendant must show that they actually had an adverse effect on the defense.

It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding. 466 U.S. at 693 , 104 S.Ct. 2052 (citations omitted; emphasis supplied). The heavy burden on the defendant is to show a reasonable probability that the outcome of the trial would have been different: The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. 466 U.S. at 694 , 104 S.Ct. 2052 (emphasis supplied).

What Strickland termed “a reasonable probability” that the trial result would have been different, Oken v. State, 343 Md. at 284 , 681 A.2d 30 , re-cast as “a substantial possibility” that the result would have been different: In order to establish prejudice, Oken must show that there is a substantial possibility that, but for counsel’s unprofes ⁵⁵⁶ sional errors, the result of the proceeding would have been different. (Emphasis supplied). Kimmelman v. Morrison, 477 U.S. 365, 387-89 , 106 S.Ct. 2574 , 91 L.Ed.2d 305 (1986) is an excellent elucidation of the prejudice component. 3 2. Effectiveness of Appellate Counsel The two-pronged test enunciated in Strickland applies to claims of ineffective assistance of appellate counsel just as surely as it does to claims of ineffective assistance of trial counsel.

Smith v. Robbins, 528 U.S. 259 , 120 S.Ct. 746 , 145 L.Ed.2d 756 (2000) (“[T]he proper standard for evaluating Robbins’s claim that appellate counsel was ineffective ... is that enunciated in Strickland v. Washington [.]”). Although the basic principles enunciated by Strickland remain the same, whether applied to a trial performance or an appellate performance, the juridical events to which those principles apply obviously differ somewhat depending on the operational level being scrutinized. In Jones v. Barnes, 463 U.S. 745 , 103 S.Ct. 3308 , 77 L.Ed.2d 987 (1983), the Supreme Court assessed the constitutional adequacy of appellate lawyering. The United States Court of Appeals for the 2nd Circuit had granted habeas corpus relief because an attorney had failed to raise on appeal a non-frivolous argument specifically requested by a defendant.

In reversing the 2nd Circuit, the Supreme Court pointed out that the strategic selection of which appellate issues to raise and which to ignore is one entrusted to the strategic judgment of appellate counsel: There can hardly be any question about the importance of having the appellate advocate examine the record with a view to selecting the most promising issues for review. This has assumed a greater importance in an era when oral ⁵⁵⁷ argument is strictly limited in most courts — often to as little as 15 minutes — and when page limits on briefs are widely imposed. Even in a court that imposes no time or page limits, however, the new per se rule laid down by the Court of Appeals is contrary to all experience and logic. A brief that raises every colorable issue runs the risk of burying good arguments — those that, in the words of the great advocate John W. Davis, “go for the jugular.” Davis, The Argument of an Appeal, 26 ABAJ 895, 897 (1940) — in a verbal mound made up of strong and weak contentions. 463 U.S. at 752-53 , 103 S.Ct. 3308 (citation omitted; emphasis supplied).

In Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661 , 91 L.Ed.2d 434 (1986), the defendant’s argument was that his lawyer had failed to raise a colorable issue and had, thereby, denied him effective assistance of appellate counsel. In rejecting that argument, the Supreme Court reaffirmed the role of appellate counsel in assessing the relative strengths and weaknesses of various arguments and in choosing, as a matter of tactics, which to push and which to ignore: After conducting a vigorous defense at both the guilt and sentencing phases of the trial, counsel surveyed the extensive transcript, researched a number of claims, and decided that, under the current state of the law, 13 were worth pursuing on direct appeal. This process of “winnowing out weaker arguments on appeal and focusing on” those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy. 477 U.S. at 535-36, 106 S.Ct. 2661 (emphasis supplied). There is also a difference in the end product to be assessed when it comes to the prejudice prong of Strickland’s two-pronged test.

Even an inexplicable and apparently indefensible failure to raise an appellate issue does not automatically give rise to a presumption of prejudice. Smith v. Robbins makes it clear that the burden remains with the petitioner to demonstrate prejudice at the appellate level by showing that had the unraised argument been raised, the appeal would probably have been successful: ⁵⁵⁸ If Robbins succeeds in such a showing [of a deficient performance], he then has the burden of demonstrating prejudice. That is, he must show a reasonable probability that, but for his counsel’s unreasonable failure to file a merits brief, he would have prevailed on his appeal. 528 U.S. at -, 120 S.Ct. at 764 , 145 L.Ed.2d at 780 (emphasis supplied). Even under circumstances where 1) counsel had failed to consult with a convicted defendant about the possibility of an appeal and 2) counsel, without the express consent of the defendant, had failed to file any appeal at all, the Supreme Court, in Roe v. Flores-Ortega, 528 U.S. 470 , 120 S.Ct. 1029 , 145 L.Ed.2d 985 (2000), held that appellate counsel’s performance was not per se deficient.

The Court still insisted on an actual showing, under Strickland , with respect to both components of its two-pronged test. We cannot say, as a constitutional matter, that in every case counsel’s failure to consult with the defendant about an appeal is necessarily unreasonable, and therefore deficient. Such a holding would be inconsistent with both our decision in Strickland and common sense. 528 U.S. at -, 120 S.Ct. at 1036, 145 L.Ed.2d at 996 (emphasis in original). Justice O’Connor elaborated further on the ultimate or underlying purpose of the Sixth Amendment’s guarantee: [W]e have consistently declined to impose mechanical rules on counsel — even when those rules might lead to better representation — not simply out of deference to counsel’s strategic choices, but because “the purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation ... [but rather] simply to ensure that criminal defendants receive a fair trial.” 528 U.S. at-, 120 S.Ct. at 1037, 145 L.Ed.2d at 997. 3.

The Standard of Appellate Review In reviewing a hearing judge’s determination on a claim of ineffective assistance of counsel, we will, of course, ⁵⁵⁹ extend great deference to the hearing judge’s findings of disputed, first-level, historic facts, but will nonetheless make our own independent decision with respect to the ultimate legal significance of those facts. Strickland v. Washington, 466 U.S. at 698 , 104 S.Ct. 2052 , was emphatic in this regard: Ineffectiveness is not a question of “basic, primary, or historical fac[t].” Rather, ... it is a mixed question of law and fact.... [Bjoth the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact. (Citations omitted; emphasis supplied). Within a year of Strickland’s having been decided, Judge Orth set out clearly the function of appellate review in Harris v. State, 303 Md. 685, 698 , 496 A.2d 1074 (1985): [I]n making our independent appraisal, we accept the findings of the trial judge as to what are the underlying facts unless he is clearly in error.

We then re-weigh the facts as accepted in order to determine the ultimate mixed question of law and fact, namely, was there a violation of a constitutional right as claimed. Walker v. State, 12 Md. App. 684, 691-95 , 280 A.2d 260 (1971)[.] (Emphasis supplied). Cirincione v. State, 119 Md.App. at 485 , 705 A.2d 96 , relied on Strickland in pointing out the distinction between first-level facts and ultimate, conclusory, or constitutional facts. Judge Thieme explained that although “we will defer to the post-conviction court’s findings of historic fact, absent clear error,” when it comes to the dispositive and conclusory fact “we make our own, independent analysis of the appellant’s claim.” See also State v. Thomas, 328 Md. 541, 559 , 616 A.2d 365 (1992).

State v. Purvey, 129 Md.App. 1, 10 , 740 A.2d 54 (1999), was equally clear as to the standard of appellate review: Within the Strickland framework, we will evaluate anew the findings of the lower court as to the reasonableness of counsel’s conduct and the prejudice suffered. Whether counsel’s performance has been ineffective is a mixed ques ⁵⁶⁰ tion of fact and law. Strickland, 466 U.S. at 698 [, 104 S.Ct. 2052 ].... As a question of whether a constitutional right has been violated, we make our own independent evaluation by reviewing the law and applying it to the facts of the case.

(Emphasis supplied). INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL For reasons that will become clear as our analysis unfolds, it will be logically convenient for us to address initially the issue of the effectiveness of the assistance of Gross’s appellate counsel. Although the appropriate relief for ineffective assistance of trial counsel would be the granting of a new trial, the appropriate relief for ineffective assistance of appellate counsel would be the awarding of a belated or new appeal, at which issues which should have earlier been raised may ultimately be considered. In Williams v. State, 326 Md. 367, 382 , 605 A.2d 103 (1992), Judge Bell (now Chief Judge) pointed out for the Court of Appeals that the relief “should be tailored to fit” the deficiency: This raises the question of the appropriate remedy for that incompetence.

In United States v. Morrison, 449 U.S. 361, 364 , 101 S.Ct. 665, 668 , 66 L.Ed.2d 564, 568 (1981), the Supreme Court pointed out that relief from a violation of the Sixth Amendment right to the effective assistance of counsel should be tailored to fit the circumstances of the case. A new trial is not the appropriate remedy since the violation did not impact the fairness of the trial. (Emphasis supplied). Following the post-conviction hearing, the Amended Order, after granting a new trial because of the finding that trial counsel had been ineffective, also granted conditional alternative relief because of the finding that appellate counsel had been ineffective: ORDERED that Petitioner’s Petition for Post Conviction Relief on the grounds of ineffective assistance of appellate ⁵⁶¹ counsel is GRANTED and Petitioner will have 30 days to file a Notice of Appeal to the Court of Special Appeals of Maryland, in the event that: (1) the granting of a new trial is set aside; and (2) the Court of Special Appeals of Maryland agrees with that portion of the Memorandum Opinion and Order granting Petitioner a new appeal[.] In the 37-page Memorandum Opinion and Order of the Circuit Court, seven pages were devoted to the hearing judge’s conclusions with respect to the ineffectiveness of appellate counsel.

In addressing seriatim the six alleged instances of ineffective assistance raised in the Petition for Post-Conviction Relief and two Supplements, the hearing judge rejected Gross’s claim with respect to three of those instances. In three other regards, however, the Circuit Court ruled that Gross had been denied the effective assistance of appellate counsel. The Circuit Court found specifically that appellate counsel had been ineffective 1) for failing to appeal the trial court’s ruling on the motion to suppress the DNA PCR evidence, 2) for failing to appeal the trial court’s refusal to accept Dr. Walter Rowe as an expert in DNA PCR evidence, and 3) for failing to appeal the trial court’s acceptance of the DNA PCR evidence in the absence of accompanying population genetics statistics. 1. The Performance Component of Appellate Representation We turn our attention first to what Strickland v. Washington referred to as “the performance component of an ineffectiveness claim.” 466 U.S. at 697 , 104 S.Ct. 2052 .

Upon our independent review of this mixed question of law and fact, we conclude that the performance of Gross’s appellate counsel was not only effective but highly commendable. Following Gross’s trial and convictions, appellate counsel’s first responsibility was to select the most promising issues to pursue on the appeal to this Court. “The decision whether to raise an issue on appeal is quintessential^ a ⁵⁶² tactical decision of counsel.” Oken v. State, 343 Md. 256, 271 , 681 A.2d 30 (1996). Gross’s argument that he was denied the effective assistance of counsel is based exclusively on the fact that counsel failed to raise certain issues on appeal. Whether computed as two or three such issues, the issues all concern the ultimate admissibility of DNA evidence linking the appellant to the victim.

With respect to the selection of which issues to raise on appeal, the observation of the United States Court of Appeals for the 7th Circuit in Gray v. Greer, 800 F.2d 644, 647 (1986), is very pertinent: [T]he right to effective assistance of appellate counsel does not require an attorney to advance every conceivable argument on appeal which the trial record supports. We require only that appellate counsel’s choice of issues for appeal did not fall below “an objective standard of reasonableness.” (Citations omitted). In assessing appellate counsel’s decision in that regard, the 7th Circuit made it clear that a reviewing court should look not only at the issues that were not raised but also at the issues that were and should then compare the two: Significant issues which could have been raised should then be compared to those which were raised. Generally, only when ignored issues are dearly stronger than those presented, will the presumption of effedive assistance of counsel be overcome.

Id. at 646 (emphasis supplied). We are not suggesting for a moment that Gross’s claims with respect to the DNA evidence were frivolous. An effective performance by appellate counsel, however, does not require that every claim, even if non-frivolous, be raised on appeal. Smith v. Robbins, 528 U.S. 259 ,-, 120 S.Ct. 746, 765 , 145 L.Ed.2d 756, 782 (2000), observed in this regard: [AJppellate counsel who files a merits brief need not (and should not) raise every nonfrivolous claim, but rather may ⁵⁶³ select from among them in order to maximize the likelihood of success on appeal.

(Emphasis supplied). Gross’s appellate counsel testified that he and his co-counsel engaged in just such a selection process based on just such a criterion: [W]e raised those issues we thought we had the best chance of success with and those are the issues that are contained in the brief. Gross argues that the raising of certain legitimate arguments on his appeal to this Court in no way precluded the raising of the DNA-related arguments as well. He ignores, however, the strategic value of limiting an appeal to several strong arguments rather than diffusing the appellate force over too broad a range of issues.

With respect to such strategic considerations, as to which appellate courts are loathe to second-guess appellate counsel, Jones v. Barnes, 463 U.S. 745, 751-52 , 103 S.Ct. 3308 , 77 L.Ed.2d 987 (1983), cogently observed: Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues. (Emphasis supplied). In Jones v. Barnes, the Supreme Court also quoted with approval, 463 U.S. at 752 , 103 S.Ct. 3308 , from Justice Robert Jackson’s article “Advocacy Before the United States Supreme Court,” 25 Temple L.Q. 115, 119 (1951): One of the first tests of a discriminating advocate is to select the question, or questions, that he will present orally. Legal contentions, like the currency, depreciate through over-issue.

The mind of an appellate judge is habitually receptive to the suggestion that a lower court committed an error. But receptiveness declines as the number of assigned errors increases. Multiplicity hints at lack of confidence in any one.... [Experience on the bench convinces ⁵⁶⁴ me that multiplying assignments of error will dilute and weaken a good case and will not save a bad one. (Emphasis supplied).

The Supreme Court similarly quoted with approval from R. Stern, Appellate Practice in the United States 266 (1981): Most cases present only one, two, or three significant questions. ... Usually, ... if you cannot win on a few major points, the others are not likely to help, and to attempt to deal with a great many in the limited number of pages allowed for briefs will mean that none may receive adequate attention. The effect of adding weak arguments will be to dilute the force of the stronger ones. Id.

Jones v. Barnes also quoted with approval from the 1980 manual of the Association of the Bar of the City of New York on practice before the Court of Appeals for the 2nd Circuit: [A] brief which treats more than three or four matters runs serious risks of becoming too diffuse and giving the overall impression that no one claimed error can be serious. Id. at 752 n. 5, 103 S.Ct. 3308 . Gross’s appellate counsel testified that he did the very things Jones v. Barnes encourages a good appellate attorney to do in concentrating the attack and stressing the strong points: I believe we made prudent decisions that were intellectually thought out and they were well-reasoned at the time. I don’t think there’s anybody who does this for a living that after hindsight and going back and reviewing every piece of evidence and listening to other people’s views on things might have done things differently.

But I think with the information that we had I think that we made the best decisions as the time, at least we felt we were making on behalf of Mr. Gross. ⁵⁶⁵ The Appeal: An Overview On the direct appeal of Gross’s convictions to this Court, counsel raised nine significant issues, in response to which this Court issued a 43-page opinion. On one of those issues, Gross prevailed completely and won the reversal of his conviction for kidnapping, for which he had received a sentence of 25 years. On a second issue, Gross achieved a partial victory. His conviction for first-degree rape, for which he had received a sentence of 25 years, was vacated and ordered merged into his conviction for first-degree murder.

At oral argument before this Court, counsel for Gross disdained the significance of those victories because the two 25-year sentences were concurrent both with each other and with the life sentence for first-degree murder. Strong strategic considerations, however, dictated attacking those predicate felonies for first-degree felony murder, as we shall discuss more fully infra. Appellate Issue # 1: Search and Seizure In evaluating appellate counsel’s performance, it is difficult to find fault with his strategic approach. Of the nine contentions he did raise, first and foremost was an attack on the search warrants.

The Anne Arundel County Police Department had obtained search warrants for 1) Gross’s person, 2) Gross’s car, and 3) Gross’s residence, all of which were executed on January 10, 1994. Samples of Gross’s blood, hair, and saliva were obtained and submitted to the crime laboratory. Without those samples, there would have been no DNA identification. In the search of the appellant’s vehicle, the police discovered a notebook containing both the murder victim’s handwriting and her fingerprints.

They also collected fibers from the vehicle’s carpet which matched fibers found on the victim’s clothes and body. This evidence indicating that the victim had been in Gross’s vehicle self-evidently was a significant factor in convincing Gross that he had no choice but to take the stand in an attempt to explain away his obvious contact with the victim. ⁵⁶⁶ Gross’s appellate counsel attacked all of this evidence by arguing that he was entitled to a “taint” hearing under Franks v. Delaware, 438 U.S. 154 , 98 S.Ct. 2674 , 57 L.Ed.2d 667 (1978). He detailed a number of “discrepancies and omissions between the statement of probable cause attached to the warrant applications and the police report” and argued that they showed that the affiants on the warrants had either intentionally lied or showed a reckless disregard for the truth. There were a number of omissions of arguably exculpatory significance that captured the attention of this Court.

Although we ultimately rejected the contention, we grappled with it in our opinion in an extended discussion. This was clearly a plausible contention that should have been raised and was raised. Appellate Issues 2, 3, 4, and 5: Legal Sufficiency of the Evidence In Gross’s next four contentions, respectively, his counsel attacked the legal sufficiency of the State’s evidence to support the convictions for 1) first-degree rape, 2) kidnapping, 3) first-degree murder of the premeditated variety, and 4) first-degree felony murder and the use of a handgun in the commission of a felony. The conviction for first-degree rape was not only significant in its own right; it was also one of the two possible predicate felonies the State was relying on to prove first-degree felony murder.

Counsel mounted a strong attack on the rape conviction on two separate grounds. He challenged the State’s proof of the fact of vaginal intercourse. That attack was based on the very equivocal nature of the evidence as to the presence of spermatozoa in the victim’s vagina. The State Medical Examiner testified that the autopsy examination “did not indicate the presence of sperm or lubricant for sexual intercourse.” The medical examiner “found no evidence that [the victim] had engaged in sexual relations prior to the time of her death.” A police department serologist, on the other hand, took a vaginal swab from the victim’s genital area at the crime scene, which revealed the presence of “a very few sperm ⁵⁶⁷ cells.” Counsel quite properly challenged the proof of the fact of vaginal intercourse.

Counsel also challenged the State’s proof that the sexual intercourse, if proved to have occurred, was other than consensual. Gross testified that he had consensual sexual relations with the victim one day before her murder. The medical examiner, moreover, did not find any bruises or scrapes in the victim’s vaginal area. In approximately four pages, we rejected that challenge to the sufficiency of the evidence.

It was, however, a challenge worthy of being raised, particularly so in that it ultimately turned out to be the only predicate left standing to support the conviction for first-degree felony murder. The strategic wisdom of challenging the kidnapping conviction speaks for itself. We found that, the evidence was not legally sufficient to support the charge and we reversed that conviction. Not only did the reversal eliminate a conviction for a major felony in its own right; it removed from the case one of the two possible predicates relied on by the State to prove first-degree felony murder.

In this case, the jury returned a verdict of guilty of first-degree murder generally. It was not asked to specify and it did not specify whether that verdict was based on a premeditated killing rationale or a felony-murder rationale or both. Of necessity, Gross had to attack his most significant conviction by challenging the legal sufficiency of the evidence to support either rationale. His attack on the premeditated killing rationale was based on the lack of evidence to show that Gross deliberately and with premeditation killed the victim.

Evidence indicated that Gross only “felt like he had to” kill his victim after his companion, Scott, unexpectedly shot her. Gross’s claim, certainly a plausible one, was that his decision to kill was sudden and spontaneous and did not, therefore, qualify as a premeditated murder. Although we rejected the claim, it was not a frivolous claim and it was one that had to be made. ⁵⁶⁸ The appellant’s attack on his conviction for first-degree murder on a possible felony-murder rationale and his related attack on his conviction for the use of a handgun in the commission of a felony constituted a necessary complementary claim to his earlier attacks on his rape and kidnapping convictions. If he had been successful in both of those earlier contentions, as he was on one of them, that would have eliminated any basis for either felony murder or the use of a handgun in the commission of a felony.

That salutary result, however, would not have followed automatically from his earlier successes. It would still have been necessary for him to frame, as he did, a separate and distinct contention with respect to the two crimes that arose out of and depended on a conviction for a predicate felony. Appellate Issue # 6: Mandatory Merger Under State v. Frye It also would have been foolhardy for Gross’s counsel not to have raised the contention with respect to the merger of the rape conviction into the murder conviction. Once Gross succeeded in having his kidnapping conviction reversed, the rape conviction remained as the only possible predicate for felony murder.

Because the jury was silent as to its rationale for the first-degree murder conviction, Gross was entitled, under State v. Frye, 283 Md. 709 , 393 A.2d 1372 (1978), to the benefit of the presumption that the verdict was based on a felony-murder rationale. That being the case, the sentence for rape was vacated and the rape conviction was merged into the murder conviction. The wisdom of making this contention on appeal speaks for itself. Appellate Issues 7 and 8: The Composition of the Jury Gross’s final three contentions on appeal related to the composition of the jury.

By way of context, the pool of fifty prospective jurors included only four African-Americans. Gross himself is an African-American. On the basis of Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), ⁵⁶⁹ Gross challenged the striking of juror number 38, an African-American female, with its obvious impact of eliminating 25 per cent of the potential pool of African-American jurors. We rejected the claim because of the trial judge’s finding that the State’s exercise of its strike was based on the prospective juror’s knowledge of DNA testing.

Because the State was called upon to explain its strike, however, it cannot be said that the contention was insignificant. The jury that was ultimately impaneled consisted of two African-Americans and ten Caucasians. After opening statements, the court recessed the proceedings for the day and directed the jurors to return the following morning. When court began the next morning, the judge informed counsel for both parties that juror number 10, one of two African-Americans, was excused and would be replaced by an alternate, who happened to be Caucasian.

The court at that time gave no explanation for the substitution. At the subsequent motion for a new trial, it was established that juror number 10 had contacted the judge through the bailiff at the conclusion of the first day. She was brought into the judge’s chambers where she expressed certain fears. She also indicated that she was uncomfortable because she knew that her minister was supporting Gross.

Although we ultimately rejected the claim, primarily because of non-preservation, the claim clearly was worthy of being raised and argued. Appellate Issue # 9: The Right to Be Present at Every Stage of Trial The final contention raised by appellate counsel related to the removal of that juror. That final argument was based upon the alleged violation of Gross’s right to be present at all stages of his trial. He claimed that the ex parte conference between the excused juror and the judge violated that right.

Our rejection of the claim was based simply on waiver through lack of objection. Under the circumstances, it cannot be said that the claim was not worthy of being advanced by appellate counsel. ⁵⁷⁰ Comparing Relative Strengths And Relative Weaknesses Gross’s appellate counsel obviously mounted a formidable appellate challenge to his convictions, raising a number of difficult and perplexing issues. The hearing judge found that counsel was ineffective for failing to raise three other issues. All three related to the DNA evidence.

Actually, the three issues reduce themselves to two, in that two of them are simply variations on the same evidentiary ruling. One of them refers to the trial judge’s denial of Gross’s motion in limine to exclude the DNA results generally; another refers to the same denial of the same motion on the ground that the results were inadmissible absent accompanying population genetics statistics. It cannot seriously be contended that the issues not raised on Gross’s appeal to this Court were “clearly stronger than those presented.” It cannot seriously be maintained that appellate counsel failed to select the stronger arguments available to him “in order to maximize the likelihood of success on appeal.” It cannot seriously be said that “appellate counsel’s choice of issues for appeal ... [fell] below an objective standard of reasonableness.” The Weakness of the Issues Not Raised on Appeal In assessing the reasonable adequacy of appellate counsel’s strategic judgment in raising certain claims and in rejecting others, we look not simply at the relative strength of the contentions that were made but at the relative weakness of those that were not. With respect to the failure of counsel to appeal the trial judge’s denial of Gross’s motion in limine, an obvious facial weakness of such a contention is that it was never preserved for appellate review.

While non-preservation is not ipso facto a fatal disqualification (two issues were raised on direct appeal that had not been preserved, although neither ultimately cleared the preservation hurdle), it nonetheless seriously compromises a contention’s expectations of success. It is an obvious strategic factor in choosing and then deploying ⁵⁷¹ most effectively one’s strongest issues. While that failure to object to the introduction of the evidence at trial might tilt in Gross’s favor on the issue of the ineffectiveness of his trial counsel, it tilts decidedly in Gross’s disfavor on the issue of the effectiveness of his appellate counsel. It would seem to be the soundest of appellate strategies not to waste precious pages and precious minutes pushing an issue that has not been preserved for appellate review.

Gross’s response, not unexpectedly, was that the appellate courts possess the discretion to notice “plain error” notwithstanding the lack of preservation. While that may be true as an abstract principle, the reality is that except under exceedingly rare and extraordinary circumstances, this Court has been and continues to be persistently disinclined to overlook non-preservation. See, e.g, Austin v. State, 90 Md.App. 254 , 600 A.2d 1142 (1992). We do not hesitate to note that this issue would not have occasioned one of the rare and extraordinary exceptions to that disinclination.

Gross’s appellate counsel had the prescience to anticipate what our reaction would have been to unpreserved issues. Quite aside from the problem of non-preservation, the contentions that were not raised were fatally weak on their merits. The hearing judge herself, when looking at the same evidentiary rulings in the context of whether the trial court was guilty of error, found that the rulings were not erroneous. We do not hesitate to note that had these issues been preserved and were they before us on direct appeal, we would not reverse Gross’s convictions on the basis of them.

Once again, Gross’s appellate counsel appreciated the basic weakness of the contentions. It is not a strategic blunder to refrain from pushing losers. Yet another weakness in the contentions that were not raised is that the DNA evidence to which they relate did nothing but establish that Gross might have been in physical contact with his victim. From the point of view of the pending appeal, that evidence did not prove anything that was in dispute.

Gross voluntarily took the stand in his own defense ⁵⁷² and testified that he had had sexual intercourse with the victim in his car one day before her body was found. Sound trial strategy dictated that he had to take the stand not to explain why DNA evidence possibly linked him to the victim but primarily to explain away the non-DNA evidence found in his automobile which showed positively that the victim had been present in it and secondarily to explain away his possession of what could have been the murder weapon. He took the stand, as he was essentially compelled to do, and attempted to offer plausible explanations. The DNA evidence, therefore, did not contradict his story but corroborated it.

At the post-conviction hearing, to be sure, Gross argued that at the time the evidentiary ruling was made, he had not yet determined whether to take the stand, notwithstanding his lawyer’s testimony to the contrary. That is something that was not in the trial transcript, however, and would not have been before this Court as it considered the impact of his apparently voluntary testimony. It was not a strategic blunder to refrain from raising an issue that, at best, would have been deemed harmless error. In planning and executing a sound appellate strategy — in determining the optimum number of issues to be advanced and in selecting those issues most likely to achieve success— the performance of Gross’s appellate counsel did not fall below that standard of reasonableness demanded by Strickland v. Washington. 2.

Failure of Defendant to Prove Either Component Is Fatal to Claim of Ineffective Assistance The effectiveness of appellate counsel’s performance, of course, is only one of the two basic issues that may be considered in assessing whether a criminal defendant was denied the effective assistance of appellate counsel. Strickland v. Washington, 466 U.S. at 698 , 104 S.Ct. 2052 , referred to “both the performance and prejudice components of the ineffectiveness inquiry.” Those distinct components may be considered in any order and the failure of the defendant to ⁵⁷³ prevail on either could render the vitality of the other aspect of the claim moot. Although we have discussed the performance component of an ineffectiveness claim prior to the prejudice component, there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.

The object of an ineffectiveness claim is not to grade counsel’s performance. If 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. 466 U.S. at 697 , 104 S.Ct. 2052 (emphasis supplied). 3. The Prejudice Component of Appellate Representation Whereas Portia’s quality of mercy is “twice-blest,” Gross’s claim that he was denied the effective assistance of appellate counsel is “twice-curst.” Quite aside from our conclusion that Gross has failed to establish that he did not receive the benefit of an effective performance by appellate counsel, we also conclude that he has failed to establish, even assuming a deficient lawyerly performance, that he suffered any prejudice thereby. He has proved neither “component of the ineffectiveness inquiry” and to prevail, of course, he must prove both.

The Memorandum Opinion and Order of the hearing judge cited three instances (in effect, two instances) with respect to which she found that Gross had not received the effective assistance of appellate counsel. In the discussion of each of those instances, the hearing judge’s conclusions go only to an assessment of the performance component. The assessment reduces itself to a grading of appellate counsel’s performance, notwithstanding Strickland v. Washington’s admonition that “[t]he object of an ineffectiveness claim is not to grade counsel’s performance.” 466 U.S. at 697 , 104 S.Ct. 2052 . ⁵⁷⁴ In none of the discussions of the three instances of alleged ineffectiveness is there any suggestion that the prejudice component was even considered. Certainly, there was no detailed or reasoned finding with respect to such prejudice.

In the context of resolving an ineffective assistance claim with respect to appellate counsel in Smith v. Robbins, 528 U.S. 259 , -, 120 S.Ct. 746, 764 , 145 L.Ed.2d 756, 780 (2000), the Supreme Court emphatically stated that even if a defendant “succeeds in such a showing” of deficient lawyerly performance by appellate counsel, he still “has the burden of demonstrating prejudice.” In then defining that burden, the Supreme Court made it clear that the defendant “must show &• reasonable probability that, but for counsel’s unreasonable failure [to raise a claim], he would have prevailed on his appeal.” Ironically, the findings of the hearing judge on a related set of issues actually negated the very possibility of prejudice. The three instances of alleged appellate ineffectiveness arose out of two evidentiary rulings by the trial judge. In each instance, the hearing judge found that appellate counsel was not effective for faffing to appeal those rulings. As part of the post-conviction petition, however, Gross also maintained that he was entitled to a new trial because the trial judge had committed reversible error in making those evidentiary rulings.

In each instance, the hearing judge found that the trial judge was not in error and that the rulings were correct. A. Instance # 1: The Denial of the Motion in Limine Generally The first instance concerns the trial court’s denial of Gross’s motion in limine to exclude any evidence relating to DNA PCR testing. Based on the fact that Gross’s counsel believed the evidence was harmful enough to cause him to file the motion in limine in the first place, the hearing court concluded that his appellate representation was ineffective because of his subsequent failure to appeal from that adverse ruling: When O’Neill [defense counsel] lost the pretrial motion in limine, he should have objected' to the admission of this ⁵⁷⁵ evidence during the trial, and then raised this issue on appeal. The Court finds that there is no reasonable strategy for not appealing this issue.

In failing to raise this issue on appeal, Petitioner’s case was prejudiced. (Emphasis supplied). When assessing the conduct of the trial judge, on the other hand, the hearing judge concluded that the denial of the motion in limine was not in error: The Court finds that this is a bald allegation that is unsupported by Petitioner. Petitioner has not explained why Judge Williams was wrong in not suppressing the DNA PGR evidence.

While Petitioner has referred the Court to Williams v. State, 342 Md. 724 , 679 A.2d 1106 (1996), that case had not been decided at the time of Petitioner’s trial. Based on the evidence presented to the trial court at the pretrial motion in limine hearing, the trial couH could have made an independent finding that this evidence shoidd not be excluded. Therefore, pursuant to Johnson v. Warden of Md. Penitentiary, 244 Md. 695 , 223 A.2d 798 (1966), this Comi finds no tñal court error. (Emphasis supplied).

Where is the prejudice in failing to appeal from an eviden-tiary ruling that did not constitute reversible error? B. Instance # 2: The Denial of the Motion in Limine on a Specific Ground The second instance is nothing more than a slightly more specific rephrasing of the first instance. Whereas the first instance concerned the failure to appeal from the denial of the motion in limine generally, the second instance concerns the failure to appeal from the same denial on the specific ground that DNA results should not have been admitted absent accompanying population genetics statistics. Although there was no Maryland case law standing for any such principle and although there was no Maryland statute expressly discussing the subject, the hearing judge found that appellate ⁵⁷⁶ counsel was ineffective for failing to appeal from the denial of the motion in limine on that specific ground: Clearly, O’Neill felt that the DNA PCR results should not have come in without the population genetics statistics.

When the trial court ruled against him, O’Neill should have raised the issue on appeal. The fact that Armstead had not yet been decided does not alter this conclusion because O’Neill knew the results would not be meaningful without the population genetics statistics. Failure to raise this issue on appeal prejudiced Petitioner’s appeal by precluding the appellate court from considering this issue in his case, and resulted in ineffective assistance of appellate counsel. (Emphasis supplied).

In the slightly different posture of finding whether the trial judge was in error for failing to grant the motion in limine on that specific ground, on the other hand, the hearing judge found no error: At the time of Petitioner’s trial, Armstead had not been decided. Therefore, the trial court would not have been educated by case law to the necessity of the population genetics statistics to accompany the DNA PCR evidence. Therefore, the trial court did not err in its ruling. (Footnote omitted; emphasis supplied).

Again, where is the prejudice in failing to appeal from an evidentiary ruling that did not constitute reversible error? Both at the time of the evidentiary ruling on the motion in limine on November 29, 1994, and of the filing of this Court’s opinion on February 26, 1996, the controlling law was Jackson v. State, 92 Md.App. 304, 324-25 , 608 A.2d 782 (1992), which held that there was “no need for the State to offer additional evidence, such as probability calculations, to establish that the testing procedures employed were reliable.” The trial court followed Jackson , as it should have, and this Court, had the case been before it, would have followed its own precedent in Jackson . ⁵⁷⁷ Although, to be sure, subsequent dicta in Armstead v. State, 342 Md. 38, 77-83 , 673 A.2d 221 (1996), strongly indicated that population genetics statistics should be required (the actual holding of Armstead was simply that “the trial court did not abuse its discretion in admitting the statistical evidence”), the Armstead opinion, filed on March 20, 1996, did not come down until both the trial and the first appeal to this Court as a matter of right were completed. At oral argument, counsel for Gross attempted to bring the appellate process under the umbrella of the Armstead dicta by suggesting that when Armstead was decided, on March 20, 1996, Gross’s appeal was still within the time when Gross could have applied for certiorari to the Court of Appeals. The possibility of such discretionary review, however, does not implicate any Sixth Amendment right to the effective assistance of appellate counsel.

Evitts v. Lucey, 469 U.S. 387 , 396-97 n. 7, 105 S.Ct. 830 , 83 L.Ed.2d 821 (1985), established that the right’to the effective assistance of counsel is dependent on the right to counsel itself. Wainwright v. Torna, 455 U.S. 586, 587-88 , 102 S.Ct. 1300 , 71 L.Ed.2d 475 (1982), and Ross v. Moffitt, 417 U.S. 600, 610-15 , 94 S.Ct. 2437 , 41 L.Ed.2d 341 (1974), in turn, established that the right to appellate counsel only extends to a first appeal taken as a matter of right and not to subsequent discretionary appellate review. Ross v. Moffitt held specifically that the Sixth Amendment right to appellate counsel extended to an appeal as of right to the North Carolina Court of Appeals but did not extend to subsequent discretionary review by the North Carolina Supreme Court. Even if there were, arguendo, some obligation on appellate counsel to predict a future change in the law, that obligation to prophesy, to the extent it would be grounded in the Sixth Amendment, would not have extended beyond February 26, 1996, the termination of the first appeal as a matter of right in this case.

Armstead v. State’s disapproval of Jackson v. State, 342 Md. at 79 n. 32, 673 A.2d 221 , did not ⁵⁷⁸ come' until March 20, 1996, by which time both the trial and the appeal as a matter of right and all obligations pertaining thereto were terminated. 4 ⁵⁷⁹ With respect to any obligation on appellate counsel to anticipate such a future change in the law, moreover, Smith v. Murray, 477 U.S. 527, 536 , 106 S.Ct. 2661 , 91 L.Ed.2d 434 (1986), could not have been more clear: It will often be the case that even the most informed counsel will fail to anticipate a state appellate court’s willingness to reconsider a prior holding or will underestimate the likelihood that a federal habeas court will repudiate an established state rule. But as Strickland v. Washington made clear, “[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evah uate the conduct from counsel’s perspective at the time.” (Emphasis supplied). C. Instance # 3: The Refusal to Accept Dr. Walter Rowe As An Expert On DNA Evidence The third instance of alleged appellate ineffectiveness concerned the failure to appeal from the trial judge’s refusal to accept Dr. Walter Rowe as an expert on DNA PCR evidence. With respect to appellate counsel, the hearing judge found: After the trial court ruled that Rowe was not qualified to testify as an expert on DNA PCR evidence, O’Neill must have considered this an error, since O’Neill held the opinion that Rowe was qualified.

He, therefore, should have raised the issue on appeal and his failure to do so prejudiced Petitioner’s appeal. Therefore, the Court finds that appellate counsel’s assistance was ineffective in failing to raise this issue on appeal. (Emphasis supplied). With respect to whether the trial judge erred in having made such a ruling, however, the hearing judge found: After reviewing the pretrial motion in limine transcript, dated November 29, 1994, the Court finds that the trial ⁵⁸⁰ court did not err in refusing to accept Rowe as an expert in DNA PCR evidence.

This Court has already found, under Petitioner’s allegation of ineffective assistance of counsel, that Rowe was not qualified to testify about DNA PCR testing. Therefore, this Court finds that the trial court did not err in refusing to accept Rowe as an expert in DNA PCR evidence. (Emphasis supplied). Without suggesting for a moment that the wisdom of a particular appellate strategy needs any sort of appellate endorsement, we nonetheless note the wisdom of recognizing that evidentiary rulings on expert testimony, such as this, are reviewed by the highly deferential clear-abuse-of-discretion standard.

In Raithel v. State, 280 Md. 291, 301 , 372 A.2d 1069 (1977), Judge Levine pointed out that this is the type of trial decision with respect to which reversal is rare: [T]he admissibility of expert testimony is a matter largely within the discretion of the trial court, and its action in admitting or excluding such testimony will seldom constitute a ground for reversal. (Emphasis supplied). Yet again, where is the prejudice in failing to appeal from an evidentiary ruling that did not constitute reversible error? The Ultimate Lack of Prejudice: The Appellate Decision Would Not Have Changed Had any of these three issues been before us on direct appeal, moreover, we do not hesitate to state that we would not have found reversible error with respect to any of them.

There was, therefore, in the words of Smith v. Robbins, 528 U.S. at-, 120 S.Ct. at 764, 145 L.Ed.2d at 780, no showing by Gross of “a reasonable probability that but for counsel’s” failure to raise the issues, “he would have prevailed on his appeal.” To wit, there was no possible prejudice. ⁵⁸¹ A HYBRID ISSUE: MIXING TRIAL PERFORMANCE WITH APPELLATE PREJUDICE We initially expected that at this point we would be able to move from a consideration of the effectiveness of appellate counsel back to a consideration of the effectiveness of trial counsel by stepping from one neat and water-tight compartment of analysis into another. On closer examination, however, we are unable to do so. Two-thirds of what we expected to be a traditional examination of the effectiveness of trial representation with its two traditional components of trial performance and trial prejudice turns out to be a hybrid issue. It is also an issue of first impression in Maryland.

With respect to the performance component, we are, to be sure, required on these issues to examine the conduct at trial of trial counsel. As we turn to the prejudice component, however, we are called upon not to determine whether there was Strickland’s “reasonable probability” or Oken’s “substantial possibility” that the trial result would have been different but to determine instead whether there was Smith v. Robbins’s “reasonable probability” that, but for trial counsel’s failure to preserve an issue for appellate review, Gross “would have prevailed on his appeal.” We are looking for a reasonable likelihood of a different appellate result, not a different trial result. Gross successfully urged on the post-conviction hearing judge three instances of alleged ineffective assistance