State v. Latham

ADKINS, J. On May 17,1996, appellant Kevin Latham shot and killed 17 year old Harvis Coleman as he stood in front of his Baltimore ⁶⁰³ City home. The State appeals a judgment granting Latham postconviction relief on the ground that he received ineffective assistance of counsel at his 1997 jury trial on murder and handgun charges. In the eight years between conviction and Latham’s petition for postconviction relief, trial counsel became unavailable to testify due to his conviction and disbarment for perjury. On the basis of the trial record and Latham’s postconviction testimony, the Circuit Court for Baltimore City ruled that defense counsel prejudicially failed to request any relief after a juror saw Latham in shackles outside the courtroom, to request jury instructions on perfect and imperfect self-defense, and to present mitigating evidence to explain why Latham was wearing a bullet-proof vest when he shot Coleman.

The State raises the following three issues: I. Did the post conviction court err in determining that Latham’s counsel was ineffective for not asserting defenses of perfect and imperfect self-defense, when those defenses were incompatible with Latham’s counsel’s chosen trial strategy?

II

Did the post conviction court err in determining that Latham’s counsel was ineffective for not requesting a remedy based on Latham’s claim that a juror briefly saw Latham in shackles outside of the courthouse?

III

Did the post conviction court err in determining that Latham’s counsel was ineffective for not introducing evidence of Latham’s prior altercations in his neighborhoods to mitigate the State’s unsuccessful premeditation argument? After conducting our own independent constitutional appraisal of the trial and ineffective. Accordingly, we shall reverse the judgment awarding Latham a new trial. FACTS AND LEGAL PROCEEDINGS The Trial Over a four day jury trial, the State established that at around 3:00 p.m. on May 17, 1996, Harvis Coleman was ⁶⁰⁴ standing outside his home at 1932 West Lafayette Avenue in Baltimore, with his 10 year old brother Velmar Coleman 1 and his 13 year old cousin Michael Parker.

Kevin Latham rode down the street on a bicycle, then stopped in the middle of the road in front of the Coleman residence. Velmar and Parker both testified that Latham, whom none of them had ever seen before, said ‘What’s up,” to which Harvis replied, “What’s up.” According to Velmar, Latham then pulled a gun from his back pocket and shot Harvis. Velmar testified that after Latham fired, Harvis shot at Latham, hitting him in the knee. Both Velmar and Parker agreed that Latham shot first.

But according to Parker, Harvis pulled the gun from his “dip” in the front of his stomach before Latham fired. Parker fled, but Harvis and Velmar retreated into their home, where Harvis fell on the floor. The bullet had passed through Harvis’s upper arm and traveled into his chest, where it bisected his aorta and continued into his lungs. The medical examiner estimated that he died about one minute after the shooting.

Baltimore City Police Officer Joseph Bertrand heard two gunshots while he was patrolling nearby. He responded to the scene within ten seconds of the last shot, where he found Latham wounded and lying next to his bicycle in the middle of Lafayette Avenue. Latham was wearing a bullet-proof vest. A .380 cartridge casing lay about ten feet from him, but no matching weapon was ever found.

According to Bertrand and other police officers who regularly patrolled that high crime neighborhood, a gun left on the street would “probably” have been taken by someone rather quickly. Bertrand testified that he secured the crime scene, then learned that there was another shooting victim inside the Coleman residence. After finding a 9 millimeter cartridge casing on the sidewalk in front of the home, Bertrand entered the home. He found Harvis lying dead on the floor, between ⁶⁰⁵ the front hall and the dining room, with a 9 millimeter semiautomatic handgun nearby on the dining room floor.

The defense theory advanced by trial counsel was that Latham did not shoot Harvis Coleman, but was caught in crossfire exchanged between Coleman and an unidentified shooter. This strategy required an explanation for why Latham’s left hand had tested positive for gunpowder residue. The State’s gunpowder residue expert acknowledged that “there is a possibility these residues were transferred from the firearm or from an object which was right near the muzzle of a firearm when it went off[,]” at a distance of two and a half feet to six inches. Although it was “really unlikely,” a subject also could get gunshot residue on his hand if he “reached over to grab” the gun as it was being shot.

But “[m]ost probably,” he testified, Latham’s “hands were immediately adjacent, right next to a discharging firearm or else his hands were used to fire a firearm within a few hours of 4:25 on May 17, 1996.” At the end of a second day of jury deliberations on July 22, Latham complained to the trial court that a juror had seen him “outside” when he was shackled and handcuffed for boarding into a correctional services vehicle. At the time, trial counsel was not present in the courtroom, because the trial court had permitted both attorneys to leave the courtroom during deliberations with the proviso that “you do have to be back within five minutes if there is a question or verdict, so govern yourselves accordingly.” At 5:30 that afternoon, the court reconvened for the purpose of dismissing the jury for the evening, but trial counsel did not answer the court’s summons. When Latham said that he wanted to wait for his lawyer, the court agreed to wait “a couple minutes to see if he gets here.” After a short recess, the court talked to Latham at a bench conference: The Court: Sir, you want to come up? The Defendant: One of the jurors seen me.

The Court: Who saw you? The Defendant: I don’t know the name. ⁶⁰⁶ The Court: You think they saw you? The Defendant: They seen me outside. The Court: Outside there?

The Defendant: Outside. When I thought about it, I wanted to wait until they left. The Court: We’ll inquire about this later. Trial counsel did not return to the courtroom.

The court dismissed the jurors until the next morning, then asked his law clerk whether he had located Eaton. The Court: Did you find Eaton? Where is he? Law Clerk: He said he was still in his office.

The Court: Did you tell him to get here or would you like me to send a sheriff for him? I told him to get here. Did you tell him to come here? You mean you had him on the phone and you didn’t tell me you had him on the phone?

Law Clerk: No, I didn’t because you were releasing the jury. The Court: Unbelievable. Get him here, Sir. I don’t care what you do, but get him here....

As soon as you get him, tell him to get here immediately. He’ll be here.... (Whereupon, a recess ensued).... Law Clerk: Judge, they’re telling me that he left.

The Court: I can’t believe it. Now what if you have a problem with the jurors, Jim? What are you going to suggest we do then? Law Clerk: What’s that, Judge?

The Court: The problem with this juror seeing him? Tell them to find him and send somebody over here immediately. You’re unbelievable____ The Court: Call his supervisor, whoever answered, tell him I’m outraged that he wasn’t here. Tell him you made a great blunder and that I expect him and his supervisor here at 9:30 promptly....

And, Sir, then you can tell him there is a problem in that I have released the alternate and I could have done something before I released them. The Defendant: Yes. ⁶⁰⁷ The Court: Now the problem is with what we do, okay? But we’ll discuss that with your lawyer when he’s here.... Which one was it?

Do you remember where the Juror was sitting? The Defendant: Juror 4____The one that start from this side.... The Court: So it was the middle aged lady number 4. The Defendant: Yes.

Light skinned. The Court: Older lady. The Defendant: Yes. The Court: To you old, to me middle aged.

But you see sir the problem is [that] I also want you to think about, we’ll go over that with your lawyer and I’ll repeat what I told you, often it is amazing how jurors will turn away almost like they don’t want to see. I haven’t had a juror — the way I handle it if that happened during trial I would bring her up and I would say did you have occasion to stop anyone related to this trial outside of the courtroom since the trial began. And it is amazing, I have never had one say yea. It’s almost when they see somebody in chains, they’ll look away.

They don’t look. I mean, but there is a first for everything, you know. The Defendant: I guess coming out here five or 6 in the evening you’re bound to look at anything especially in chains. That’s why.

The Court: Um-hum. Well, there are some options. We’ll see what you decide after you speak to your lawyer and we’ll do that in open court. (Emphasis added.) The trial court assured Latham that “we’ll do that as soon as” trial counsel “checks in” and before the jurors resumed deliberations.

The next morning, defense counsel appeared and the matter was discussed. The trial court considered the options: The Court: Because what I may do is if they are all here at 9:30, release them in deliberations, then put that problem, ⁶⁰⁸ which was on the record and dealt with your client’s allegation that Juror Number 4 saw him in shackles before the jury was released into deliberations. And I explained to him the difficulty I could have to replace with an alternate had he told you. And I also told him more often— Mr. Eaton: I’m sure we can talk.

The Court: And I told him more often than not it is amazing. I have not had one juror actually see a defendant because there is a reluctance to look at somebody with shackles full face, you know. There are several things we can do and I told him we would discuss that more fully when and if you came back. You also should take time to apologize to my clerk because, although he may not know better, you should have known better to be here.

(Emphasis added.) Thereafter, defense counsel did not raise the issue of Juror No. 4 again. During deliberations, the jury asked for further instruction as to the difference between first and second degree murder, and the trial court gave supplemental instructions in response. The jury acquitted Latham of first degree premeditated murder, but found him guilty of second degree murder and use of a handgun to commit a crime of violence. The trial court sentenced Latham to twenty years (the first five without parole) on the handgun charge and a consecutive thirty years for the murder.

This Court affirmed the convictions. See Latham v. State, No. 1469, Sept. Term 1997, 121 Md.App. 720 (1998), cert. denied, 351 Md. 4 , 715 A.2d 963 (1998). In doing so, we held that Latham had waived his complaint that the jury should have been instructed on self-defense, because trial counsel failed to request such instructions. After the Court of Appeals denied certiorari, Latham filed for a review of his sentence.

A three-judge panel affirmed the sentences without a hearing. ⁶⁰⁹ Postconviction Proceedings On May 3, 2005, Latham filed a pro se petition for postconviction relief in the Circuit Court for Baltimore City. Later, through the public defender, Latham filed a supplementary petition, alleging the following four ineffective assistance claims: (1) Trial counsel failed to request a jury instruction on perfect or imperfect self-defense; (2) Trial counsel failed to seek a mistrial, curative instruction, or voir dire after a juror saw Latham in shackles outside the courthouse; (3) Trial counsel failed to subpoena medical evidence and/or witnesses to support Latham’s explanation for wearing the bullet-proof vest; and (4) Trial counsel failed to file a motion for modification of sentence. On November 2, 2005, the postconviction court held a hearing at which Latham testified in support of his petition. David Eaton, who served as Latham’s trial counsel, was precluded from testifying under Md.Code (1973, 2006 Repl.

Vol.), section 9-104 of the Courts and Judicial Proceedings Article (CJP), because he had been convicted of perjury. 2 On August 30, 2006, the postconviction court granted the petition, holding that trial counsel “was ineffective for failing to seek a remedy after a juror saw [Latham] in shackles and handcuffs.” Seeing the shackled Latham boarding the security van alone “may have given the juror the impression that [Latham] was highly dangerous and needed to be separated from other inmates.” This “posed the unacceptable risk that impermissible factors came into play in the jury’s verdict.” Moreover, the postconviction court concluded that, although “[t]he trial record is not exactly clear when and how the incident transpired, ... it is clear that [Latham’s] counsel was ⁶¹⁰ not in court when [Latham] brought this to the attention of the judge as the jury was concluding deliberations on the second day of trial.” Trial counsel’s failure “to take any further action to mitigate the potential prejudice to his client” fell below the standard for reasonable representation, and prejudiced Latham’s defense. Specifically, the postconviction court found trial counsel deficient for not demanding voir dire of the juror “to determine if she had seen [Latham] in shackles, and if so, how that viewing may have affected her judgment[,]” for not moving for a mistrial, and for not requesting a curative instruction. The postconviction court could not “conceive of a trial tactic or strategy that could or would justify failing to pursue one or more of these actions under the circumstances of this case.” “At a minimum, the juror should have been voir dived [.]” In addition, the postconviction court concluded that trial “counsel’s performance was deficient when he failed to request jury instructions on, and to obtain evidence in support of [Latham’s] claims of perfect or imperfect self-defense.” The court reasoned: [T]here does not seem to be a plausible trial strategy that would justify counsel’s failure to request jury instructions on this subject, or to obtain and present evidence in support of such defenses, in this case. The record clearly shows that there was an exchange of gunfire between [Latham] and the victim.

The victim’s cousin, Michael Parker, testified at least five times at trial to the effect that immediately prior to the shooting, [Latham] had said “What’s up?” to the victim, the victim had responded “What’s up?” to [Latham], and then “they started shooting at each other.” Petitioner was indisputably shot in the leg by the victim and injured, and required multiple operations. It seems apparent that a reasonably prudent defense attorney would assert the defenses of perfect or imperfect self-defense under these circumstances. However, APD Eaton made no such effort in the case____Counsel’s failure to request such instructions, or to object when they were not given, constitutes deficient performance ⁶¹¹ that was likely prejudicial to [Latham]. (Emphasis added and citation omitted.) Finally, the postconviction court ruled, trial counsel was also ineffective in failing to pursue or present evidence that would have offered the jury an innocent explanation for why Latham was wearing a bullet-proof vest.

Pointing out that “the State made a major issue of the fact that [Latham] was wearing a bulletproof vest [or ‘body armor’] at the time of the shooting,” and that the trial court “emphasized the body armor during the sentencing phase of the trial[,]” the postconviction court concluded that counsel should have followed up on Latham’s claim that he routinely wore body armor because he had previously been stabbed and shot: [Latham] indicated in his Supplemental Petition, as well as at the Post Conviction Hearing ... that he had been shot and stabbed in this neighborhood several times prior to the incident in question, and had been treated in local hospitals on each occasion. [Latham] stated that he had told APD Eaton of these facts prior to trial, and that he further advised counsel that, whenever he went outside, he always wore a bulletproof vest for protection. APD Eaton, however, failed to subpoena medical records that would have supported his claims of hav[ing] been shot and stabbed in the past, and counsel failed to subpoena witnesses who could have confirmed [Latham’s] regular habit of wearing a bulletproof vest. In conjunction with his Post Conviction hearing, [Latham] submitted a medical report dated July 22, 1990, documenting his treatment for a knife wound at Bon Sec-ours Hospital on West Baltimore Street. APD Eaton certainly could have obtained this and other medical reports as well.

It would seem apparent that such evidence would have supported [Latham’s] contention that he was not the aggressor in the shooting, and might have minimized or negated this damaging piece of evidence. Counsel’s failure to obtain such evidence falls below an objective standard of reasonableness, and was likely prejudicial to [Latham], The postconviction court concluded that the latter two aspects of trial counsel’s deficient performance “serve[ ] to ⁶¹² reinforce [its] conclusion that a new trial is required” on Sixth Amendment grounds due to counsel’s failure to pursue any remedy with respect to the juror sighting Latham in shackles. The State was granted leave to file this timely appeal. We shall add details about the trial and postconviction records as they pertain to each assignment of error.

DISCUSSION Standard Of Review The standard governing ineffective assistance of counsel claims is well established: Under Strickland [v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984) ], and its progeny, in order to demonstrate ineffective assistance of counsel, the Supreme Court has stated that a petitioner must prove that counsel’s performance fell below an objective standard of reasonableness and that the deficient performance prejudiced the defense.... To prove deficient performance, the defendant must identify acts or omissions of counsel that were not the result of reasonable professional judgment. The standard by which counsel’s performance is assessed is an objective one, and the assessment is made by comparison to prevailing professional norms. Judicial scrutiny of counsel’s performance is highly deferential, and there is a strong (but rebut-table) presumption that counsel rendered reasonable assistance and made all significant decisions in the exercise of reasonable professional judgment. “[T]he inquiry has two foci: first, a performance evaluation under prevailing professional norms; and second, an inquiry into whether the defendant suffered prejudice as a result of deficient performance.” In re Parris W., 368 Md. 717, 726-27 , 770 A.2d 202 (2001) (citations omitted).

When evaluating trial counsel’s performance, a post-conviction court does not start with a blank slate. To the contrary, as the Supreme Court instructed, the ⁶¹³ 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.” Strickland, 466 U.S. at 689 , 104 S.Ct. at 2065 (citation omitted). “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.’ ” Id. The highly deferent Strickland standard of review recognizes that “[t]here are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.” Id.

For that reason, postconviction courts must examine the acts or omissions alleged to be deficient in light of all the facts and circumstances, “viewed as of the time of counsel’s conduct!,]” so that we “eliminate the distorting effects of hindsight!.]” Id. at 689-90 , 104 S.Ct. at 2065-66 . Our appellate role in reviewing ineffective assistance of counsel claims is to 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 question of fact and law. As a question of whether a constitutional right has been violated, we make our own independent evaluation by reviewing the law in applying it to the facts of the case.

We will not, however, disturb the findings of fact and credibility determinations of the post-conviction court, unless they are clearly erroneous. Instead, we “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.” ⁶¹⁴ State v. Purvey, 129 Md.App. 1, 10-11 , 740 A.2d 54 (1999) (citations omitted), cert. denied, 357 Md. 483 , 745 A.2d 437 (2000). I. Juror Sighting Of Shackled Defendant At the postconviction hearing, Latham testified that, as