State v. Mann

Panel: Meredith, Friedman, Beachley, JJ. Beachley, J. ⁵⁹⁴ This case concerns post-conviction proceedings following appellee Christopher Mann's convictions in the Circuit Court ⁵⁹⁵ for Baltimore City. There, following a five-day jury trial which concluded on August 12, 2004, the jury convicted Mann of felony murder, kidnapping, and conspiracy to commit kidnapping. A panel of this Court affirmed Mann's convictions on direct appeal.

Mann v. State , No. 1895, Sept. Term 2004 (filed Jan. 12, 2007). Mann subsequently filed a petition for post-conviction relief. In an order dated February 13, 2018, the post-conviction court granted Mann's motion and ordered a new trial on the basis that Mann's trial counsel rendered ineffective assistance by failing to request an alibi jury instruction. The State successfully applied for leave to appeal, and presents the following issue for our review: Did the [post-conviction] court err when it found that defense counsel had been constitutionally ineffective for failing ⁶⁵⁵ to request a superfluous jury instruction?

We perceive no error and affirm. BACKGROUND Because the underlying facts of this case were fully developed in Mann's direct appeal and are not in dispute, we provide only a brief recitation for background. On April 22, 2004, between 7:00 p.m. and midnight, Ricky Prince was murdered. The State's theory of the case was that Mann and an accomplice kidnapped and murdered Prince in retaliation for Prince's cooperation with police and prosecutors in two other criminal prosecutions.

At trial, Mann called four "alibi" witnesses who testified to his whereabouts on April 22, 2004, in an effort to show that he was not present when Prince was kidnapped and murdered. Despite the fact that four alibi witnesses testified in Mann's defense, Mann's trial counsel did not request an alibi jury instruction. As stated above, the jury convicted Mann of felony murder, kidnapping, and conspiracy to commit kidnapping. The court sentenced Mann to life imprisonment for felony murder, and twenty years consecutive for conspiracy to commit kidnapping. 1 ⁵⁹⁶ In his post-conviction petition, Mann alleged, among other things, that his trial counsel rendered ineffective assistance of counsel by failing to request an alibi jury instruction. 2 At the hearing on Mann's post-conviction petition, Mann's trial counsel conceded that there was no reason not to request the alibi instruction.

Indeed, as the State concedes in its brief, "there is no dispute of material fact. [Mann's] counsel simply overlooked requesting the 'alibi' jury instruction, notwithstanding his presentation of an alibi defense." As noted, the post-conviction court found that trial counsel rendered ineffective assistance by failing to request an alibi instruction and ordered a new trial. STANDARD OF REVIEW "The review of a postconviction court's findings regarding ineffective assistance of counsel is a mixed question of law and fact." Newton v. State , 455 Md. 341 , 351, 168 A.3d 1 (2017) (citing Harris v. State , 303 Md. 685 , 698, 496 A.2d 1074 (1985) ). Because appellate courts do not make findings of fact, "we defer to the factual findings of the postconviction court unless clearly erroneous." Id. "But we review the [post-conviction] court's legal conclusion regarding whether the defendant's Sixth Amendment rights were violated without deference." Id. at 351-52, 168 A.3d 1 .

DISCUSSION The Sixth Amendment of the United States Constitution and Article 21 of the Maryland Declaration of Rights ⁵⁹⁷ guarantee all criminal defendants the right to the effective assistance of counsel. Duvall v. State , 399 Md. 210 , 220-21, 923 A.2d 81 (2007). In order for a criminal defendant to successfully vacate his conviction on this basis, he must satisfy a two-prong test ⁶⁵⁶ established in the landmark Supreme Court case Strickland v. Washington , 466 U.S. 668 , 687, 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). The two-part test is as follows: 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" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.

Id. As we shall explain, the post-conviction court correctly determined that Mann's counsel rendered deficient performance, and because this deficient performance prejudiced Mann's defense, the result of Mann's trial is unreliable. I. DEFICIENT PERFORMANCE At the outset, we note that Maryland Rule 4-325(c) states that "The court may, and at the request of any party shall, instruct the jury as to the applicable law and the extent to which the instructions are binding." Regarding when the court must instruct the jury as to the applicable law, the Court of Appeals has held that "[a] requested jury instruction is applicable if the evidence is sufficient to permit a jury to find its factual predicate." Bazzle v. State , 426 Md. 541 , 550, 45 A.3d 166 (2012). As to the burden of establishing that predicate, "the threshold is low, as a defendant needs only to produce 'some evidence' that supports the requested instruction[.]" Id. at 551 , 45 A.3d 166 .

In assessing Strickland's deficiency prong, the Court of Appeals has stated that ⁵⁹⁸ the proper standard for attorney performance is that of reasonably effective assistance. "Prevailing professional norms" define what constitutes reasonably effective assistance, and all of the circumstances surrounding counsel's performance must be considered. Because it is "tempting" for both a defendant and a court to second-guess a counsel's conduct after conviction, courts must be "highly deferential" when they scrutinize counsel's performance. Reviewing courts must thus assume, until proven otherwise, that counsel's conduct fell within a broad range of reasonable professional judgment, and that counsel's conduct derived not from error but from trial strategy.

Mosley v. State , 378 Md. 548 , 557-58, 836 A.2d 678 (2003) (internal citations and quotation marks omitted). In other words, the deficiency prong depends upon whether counsel's conduct was reasonable, and, in that analysis, a reviewing court will not assume error in counsel's performance. In Schmitt v. State , 140 Md. App. 1 , 26, 779 A.2d 1004 (2001), Judge Charles E. Moylan, Jr., wrote for this Court and considered whether trial counsel's strategic decision not to request an alibi instruction constituted deficient performance under Strickland . There, Schmitt was charged with first-degree murder (and other charges) for a shooting that occurred at a motel between 1:45 and 2:00 a.m.

Id. at 32 , 779 A.2d 1004 . At trial, Schmitt's alibi witness testified that he and Schmitt arrived at the motel between 1:30 and 2:00 a.m., but that Schmitt "was inside the motel rather than outside when the fatal shots were fired." Id. Judge Moylan noted, however, that Schmitt's alibi witness "was in the bathroom of their motel room when he ⁶⁵⁷ heard shots. [The alibi witness] testified that [Schmitt] was in the motel room when he, [the alibi witness], came out of the bathroom. He never said how long he was in the bathroom." Id. at 32-33 , 779 A.2d 1004 .

Addressing whether Schmitt's trial counsel rendered deficient performance by choosing not to request an alibi instruction, Judge Moylan began by noting that "Maryland's trial courts were through the early 1970's regularly referring to the alibi as an 'affirmative defense' and squarely allocating to the ⁵⁹⁹ defendant the burden of persuasion as to such a defense by a preponderance of the evidence." Id. at 28 , 779 A.2d 1004 . In Robinson v. State , 20 Md. App. 450 , 459, 316 A.2d 268 (1974), an opinion Judge Moylan also authored, this Court definitively corrected that misconception, stating that "an alibi is not an affirmative defense, placing any burden upon a defendant beyond the self-evident one of attempting to erode the State's proof to a point where it no longer convinces the fact finder beyond a reasonable doubt." Judge Moylan initially questioned whether the facts in Schmitt sufficiently constituted evidence of an alibi. Judge Moylan defined "alibi" to mean "[a] defense that places the defendant at the relevant time of crime in a different place than the scene involved and so removed therefrom as to render it impossible for him to be the guilty party." Schmitt , 140 Md. App. at 31 , 779 A.2d 1004 (quoting Black's Law Dictionary 71 (6th ed. 1990) ). Because Schmitt's alibi witness placed him at the scene of the crime at the relevant time, but simply inside rather than outside the motel room, 3 Judge Moylan pondered, Was an alibi defense generated in this case?

It is a close call, but technically it may have been. It was not, however, so unmistakably identifiable as an alibi defense from way down the glen as to brand the failure to recognize it as a mark of lawyerly incompetence. Schmitt , 140 Md. App. at 33 , 779 A.2d 1004 . Although noting that it was a "close call," by proceeding to analyze Strickland's deficiency prong, Judge Moylan assumed that the evidence was sufficient to generate an alibi instruction.

Judge Moylan acknowledged the deference afforded to counsel's strategic trial decisions, noting that, The entitlement to an instruction if you want one does not imply that you are derelict for not wanting one. By analogy, a defendant is constitutionally entitled to an instruction that ⁶⁰⁰ his failure to take the stand will not be held against him. It is perfectly sound trial strategy, however, to wish to forego such an instruction so as not to draw the jury's attention to the inevitably suspicious failure to take the stand[.] Id. at 34 , 779 A.2d 1004 (citing Lakeside v. Oregon , 435 U.S. 333 , 98 S.Ct. 1091 , 55 L.Ed.2d 319 (1978) ). Turning to Schmitt's case, Judge Moylan recognized that trial counsel intentionally chose not to request an alibi jury instruction because he believed that "[an] alibi instruction says you are to consider and apply the evidence along with any other evidence in the case.

To me that tells the jurors absolutely nothing." Id. Judge Moylan acknowledged the reasonableness of this strategy, stating, "In this case, counsel may not have wanted to raise any specter possibly suggested by the word ⁶⁵⁸ 'alibi.' " Id. at 35, 779 A.2d 1004 . Ultimately, Judge Moylan vindicated that strategic decision, holding that, "With respect to the disinclination ( not the failure but the disinclination ) of trial counsel to request a special alibi instruction, we see no deficiency in terms of his trial performance." Id. at 37 , 779 A.2d 1004 (emphasis added). Schmitt is clearly distinguishable from the instant case.

First, there is no question here that Mann generated an alibi defense. According to the State's case, Prince was in an altercation with Mann and others at a McDonald's at the corner of Liberty Road and Rolling Road shortly before 7:00 p.m. Following this altercation, Mann and a friend allegedly left the McDonald's with Prince and ultimately killed him. Mann's own statements to police confirmed that he was present at the McDonald's and had an argument with Prince that evening.

Mann told police, however, that after someone stole Prince's car, Mann went to his father's house and then to the home of his friend, Jeffrey Johnson, before ultimately spending the rest of the evening with his girlfriend, Tanea Jenkins. At trial, Johnson and Jenkins testified consistently with Mann's statement to the police. Jenkins testified that at approximately 6:44 p.m. on the night of the murder, Mann visited her where she worked at Target. Jenkins testified that ⁶⁰¹ she gave him some money for food during this visit.

She also testified that Mann called her at approximately 9:00 p.m. later that evening, asking her to pick him up at his mother's house, and that the two were together from approximately 9:30 p.m. on April 22, 2004, until 11:00 a.m. on April 23, 2004.