State v. Lloyd

Mason, J., delivered the opinion of the Court. The principal question we are asked to decide is whether appellee was denied effective assistance of counsel because his attorney refused to call alibi witnesses after being told by appellee that he had committed the crime charged. Following an evidentiary hearing under the Uniform Post Conviction Procedure Act, Md. Ann. Code, art. 27, § 645A et seq., the convictions of Orvel Winston Lloyd, appellee, for armed robbery and related counts were set aside, and appellee was awarded a new trial. The State’s application for leave to appeal from that determination was granted, and the case was transferred to this Court’s appeals docket.

According to the evidence adduced at appellee’s original trial, three men entered the residence of Barry K. Marsh on 28 November 1977. The assailant with the shotgun forced Barry to lie face down on the living room floor while the other two men ransacked the house. Upon hearing a car pull into the driveway, the robbers fled taking with them, among other things, Barry’s wallet containing $41.00 and a VISA credit card bearing Account Number 436-170-353-746. At trial, Barry identified appellee as the person who wielded the shotgun during the robbery.

The State also produced evidence from a credit card investigator who testified that he received a credit card charge slip from a service station in Columbia, South Carolina which showed that gasoline had been purchased with Barry’s stolen credit card on 24 December 1977 by a person driving an automobile with tag number BML 884. There was also testimony that on 7 March 1978, appellee was arrested as he was observed exiting a ⁵³⁷ 1977 black Chevrolet Monte Carlo with Maryland tag number BML 884. Appellee did not take the stand and the only evidence introduced on his behalf was the testimony of a police officer who stated that Barry Marsh’s brother, Jeffrey, who was in the house during the robbery, was unable to identify appellee as one of the robbers. At the post conviction hearing, appellee testified that on the date of Barry Marsh’s robbery he was at his sister’s house in Hilliard, Florida, and that prior to trial he gave his attorney, Thomas A. Lohm, the names of several witnesses who would testify to this effect, but none was called.

Appellee also testified that he went to Florida for the Christmas holidays in his own car and not in the Monte Carlo with tag number BML 884 which belonged to his wife. He also stated he told Lohm that this vehicle was in Alvin Jenkins’ garage on 24 December 1977 being repaired, but Lohm did nothing about it. According to appellee, Lohm would not call any of his alibi witnesses to testify because he felt that "it was scheme I was working up ... I reckon he felt that I was trying to get somebody to tell a lie for me.” Appellee’s testimony that he was in Florida on the date of the robbery and that the Monte Carlo was being repaired on 24 December 1977 was corroborated by the testimony of several witnesses.

In addition, appellee’s brother testified that he came to Maryland two or three days before trial to see whether Lohm wanted certain witnesses, but Lohm told him that the witnesses were not needed. Thomas Lohm, a member of the Maryland bar since 1954, testified that he has tried over 3,000 cases and had been an Assistant State’s Attorney for Montgomery County for five years. During the last three to four years he had tried 150 cases a year — sixty percent of which were criminal, and since 1973 he has successfully represented appellee in several criminal causes. According to the post conviction judge, Lohm is known as "an excellent attorney with a vast knowledge as far as the practice of criminal law is concerned.” ⁵³⁸ With respect to the instant case, Lohm testified that he interviewed appellee on more than one occasion, obtained open file discovery from the State’s Attorney’s Office, and gave appellee copies of all motions filed and a copy of the State’s answer to his motion for discovery and inspection.

He also wrote appellee a comprehensive letter regarding the charges and sentences facing him, and set forth a plea bargain agreement offered by the State. Regarding the calling of alibi witnesses, the following colloquy occurred between the Assistant State’s Attorney and Lohm: Q: Now, These people that have been present in court testified, in some cases, they approached you. Why did you not use them as alibi witnesses when they approached you? A: I will have to give you the background on this.

In my first interview with Winston Lloyd, he told me that he had robbed Barry Marsh. He told me that he had been paid $500 to rob Barry Marsh. I think he told me that they would find some Dilaudid or some drug there or money. With that statement to me, there was no need to inquire about any alibi witness.

Lohm’s testimony on cross-examination regarding this matter was as follows: Q: You testified earlier that Winston told you he had been given $500 to rob Barry Marsh, to get Dilaudid? A: I believe it was Dilaudid. Q: And once he told you that, there was no need to inquire as to alibi witnesses. Isn’t that your statement?

A: That is exactly my statement. Q: So once you had that statement, isn’t it true that you were convinced in your mind that anyone ⁵³⁹ who would approach you with an alibi for Winston at the time of the crime was lying? A: Yes. Lohm admitted he knew that the State intended to introduce into evidence a charge slip with the account number of Barry Marsh’s stolen credit card and the tag number issued to a Monte Carlo owned by appellee’s wife.

When asked whether he inquired where the Monte Carlo was at the time the charge card was used, Lohm explained: Winston said they used that car to go to Florida. Now, he also said something else. My notes aren’t clear on this. At one point he said that the same car he was busted in was the car he went to Florida in.

Then I have a sketchy note, that the person who was with him on the Florida trip had switched tags, inferring that the tag from some car had been switched to another. I didn’t follow up on that note. It just wasn’t important to me, at the time. Lohm also stated that he was convinced he had a "loser” and that his only defense was to attack the identification testimony of Barry Marsh, an admitted drug dealer.

In holding that appellee was denied effective assistance of counsel, the hearing judge found as a fact that appellee told Lohm that he had robbed Barry Marsh. The hearing judge also found that because of appellee’s admission, Lohm did not interview any of the alibi witnesses nor did he investigate the information he received regarding the Monte Carlo which was issued tag number BML 884 being in a garage in College Park, Maryland and not in South Carolina on the date that Barry Marsh’s credit card was used. He further found that the testimony of the alibi witnesses had probative value, and if it had been presented and believed by the trier of facts, appellee would not have been found guilty of the offenses charged. As we view it, the critical question in this case is whether Lohm’s failure to call the alibi witnesses and to investigate the whereabouts of the Monte Carlo on the date Barry ⁵⁴⁰ Marsh’s credit card was used in South Carolina was a denial of effective assistance of counsel.

The test to be applied in determining if a defendant in a criminal case was denied effective assistance of trial counsel is whether under all of the circumstances of the particular case a defendant was afforded genuine and effective representation. Slater v. Warden, 241 Md. 668, 673 , 217 A.2d 571 (1966); State v. Mahoney, 16 Md. App. 193, 201 , 294 A.2d 471 (1972). See also Marzullo v. Maryland, 561 F.2d 540, 543 (4th Cir. 1977), cert. denied, 435 U.S. 1011 (1978) where the Court, relying on McMann v. Richardson, 397 U.S. 759 (1970), held that the test forjudging effective assistance of counsel is not whether representation was so poor as to make a farce of the trial, but whether the defense counsel’s representation was within the range of competence demanded of attorneys in criminal cases. Moreover, the burden is on the defendant to prove that defense counsel’s representation was not effective.

State v. Hardy, 2 Md. App. 150, 156 , 233 A.2d 365 (1967). "Each case wherein ineffective assistance of counsel is asserted, must necessarily be decided upon the facts of that case.” Thomas v. State, 516 S.W.2d 761, 765 (Mo. Ct. App. 1974). Although the failure to call alibi witnesses presents a ground on which relief may be granted for ineffective assistance of counsel, Evans v. Warden, 240 Md. 333, 335 , 214 A.2d 144 (1966); accord, Johns v. Perini, 462 F.2d 1308, 1315 (6th Cir. 1972); Gomez v. Beto, 462 F.2d 596, 597 (5th Cir. 1972), the decision whether to call a witness is ordinarily a matter of trial tactics within the discretion of defense counsel.

Johns v. Warden, 240 Md. 209 , 212- 213 A.2d 469 (1965); Shelton v. State, 3 Md. 394, 401 , 239 A.2d 610 (1968); accord United States v. Dingle, 546 F.2d 1378, 1385 (10th Cir. 1976); see also People v. Rodriguez, 73 Cal. App. 3d 1023 , 141 Cal. Rptr. 118 (Ct. App. 1977) where the court stated: The law is well settled that a constitutionally inadequate representation by counsel is not established by a showing merely that defense counsel has failed to interview and call all prospective wit ⁵⁴¹ nesses .... since some witnesses may, with apparent certainty, be of little or no assistance to the defense, and since 'the choice of which, and how many, of potential witnesses is precisely the type of choice which should not be subject to review by an appellate court.’ 141 Cal Rptr. at 121. (Citations omitted.) In order to prevail on a claim of ineffective assistance of counsel, a defendant must establish that he acted with diligence in supplying the names and addresses of alibi witnesses, and that alibi testimony would have been beneficial to his or her case.

Raines v. United States, 434 F. Supp. 1168, 1172 (W.D. Pa. 1977); Williams v. United States, 295 A.2d 503, 505 (D.C. 1972); Commonwealth v. Williams, 274 Pa. Super. Ct. 464 , 418 A.2d 499, 503 (1980). Defense counsel, however, should not call alibi witnesses when the attorney knows or is convinced that such witnesses will offer perjured testimony. 1 Cornell v. State, 396 F. Supp. 1092, 1099 (D. Md. 1975); In re Branch, 70 A.2d 200 , 449 P. 2d 174, 181 , 74 Cal.

Rptr. 238 (1969); People v. Weston, 9 Cal. App. 3d 330 , 87 Cal. Rptr. 922 , 926 ⁵⁴² (Ct. App. 1970); Herbert v. United States, 340 A. 2d 802, 804 (D.C. 1975); Hampton v. State, 558 S.W.2d 364 , 370 (Mo. Ct. App. 1977); Bennett v. State, 549 S.W.2d 585, 587 (Mo.

Ct. App. 1977); Allen v. State, 518 S.W.2d 170, 172 (Mo. Ct. App. 1974); see also EC 7-26 and DR 7-102 of the Code of Professional Responsibility of the American Bar Association which have been adopted by the Court of Appeals of Maryland in Maryland Rule 1230. Ethical Consideration 7-26 of Maryland Rule 1230 provides: The law and Disciplinary Rules prohibit the use of fraudulent, false, or perjured testimony or evidence. A lawyer who knowingly participates in introduction of such testimony or evidence is subject to discipline.

A lawyer should, however, present any admissible evidence his client desires to have presented unless he knows, or from facts within his knowledge should know, that such testimony or evidence is false, fraudulent, or perjured. (Emphasis supplied.) And Disciplinary Rule DR 7-102 (A) (4) provides: (A) In his representation of a client, a lawyer shall not: (4) Knowingly use perjured testimony or false evidence. Defense counsel, however, should not decide "what is true and what is not unless there is compelling support for his conclusion.” State v. Whiteside, 272 N.W.2d 468, 469 (Iowa 1978). In ostensible reliance on State v. Mahoney, 16 Md. App. 193 , 294 A.2d 471 (1972), the State argues "that the decision of trial counsel not to call the alibi witnesses in the instant case was a proper exercise of judgment.

First of all, Lohm was precluded from presenting testimony which he knew was false. See Canon 7, Code of Professional Responsibility, EC 7-26, DR 7-102 (A) (4), Maryland Rules of Procedure. ⁵⁴³ Had he done so, he could have subjected himself to disciplinary action.” Appellee, on the other hand, argues, "that an attorney should be representing his client as opposed to simply protecting himself from possible disciplinary action. Further, an attorney is an advocate not a judge. Lohm’s conflict should