State v. Matthews

LISS, Judge. On May 23, 1979, William Matthews was convicted by a jury in the Circuit Court for Anne Arundel County (Goudy, J.) of rape and kidnapping. The convictions were affirmed by this Court in an unreported per curiam opinion Matthews v. State, No. 1142, September Term 1979, filed April 29, 1980. A petition for writ of certiorari was denied, 288 Md. 739 (1980).

On April 15, 1982, Mr. Matthews filed his first petition seeking post conviction relief, (Md.Code art. 27, § 645A-645J). A hearing on the petition was held on September 7, 1983. The hearing judge ordered that because trial counsel failed to request an alibi instruction, Mr. Matthews was ²⁴⁵ entitled to a new trial. The State now seeks leave to appeal this order.

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. State v. Lloyd, 48 Md.App. 535, 540 , 429 A.2d 244 (1981). An attorney is not required to raise all possible defenses, but is permitted to make tactical decisions as to which defenses to pursue and which to abandon. State v. Merchant, 10 Md.App. 545, 551 , 271 A.2d 752 (1970).

The question before us in this case is whether counsel’s tactical decision not to pursue an alibi defense amounted to ineffective assistance. In order to decide this question we must make a detailed review of the available evidence. The victim testified that she was attacked around midnight on July 31, 1979 in downtown Annapolis. Her attacker forced her to drive to an isolated road in the Carr’s Beach area of Anne Arundel County where he raped her.

After-wards, the assailant fled on foot and the victim drove to a police station. The rape took place only a few hundred feet from the applicant’s home. The applicant testified that he was in Baltimore City on the evening of the rape. Two plausible defense strategies were available.

The first strategy was to try to show that the victim’s identification testimony failed to meet the beyond a reasonable doubt standard. The second strategy was to try to win an acquittal by proving alibi. We shall first review the evidence that was available for counsel to show that the victim’s identification testimony failed to meet the beyond a reasonable doubt standard. Most of the time that the victim was in the rapist’s company, the light by which she could see was poor.

The opportunity to view her attacker was further limited by the fact that the attacker wore a mask. These factors caused the victim great difficulty in identifying her attacker. The police made no attempt to have the victim make a specific identification until November. In November the victim ²⁴⁶ viewed some photographs, but was unable to make an identification.

The police had an artist prepare a composite drawing, but the record does not indicate that the drawing helped the victim to identify the applicant. In the following February, the victim viewed more photographs but was still unable to identify her attacker although she apparently viewed applicant’s photograph. Also in February, the victim viewed a line-up. She was unable to identify the applicant in the line-up either.

However, when the line-up men removed their shirts and were viewed by her for a second time, she finally identified the applicant. She admitted that she could not identify applicant’s face, but averred that her identification was based on her viewing of applicant’s body. In addition to casting doubt on the victim’s ability to identify her attacker, defense counsel was able to impeach the victim by showing that her in-court testimony varied from the original statement she gave to the police. As regards the strategy of proving alibi, the defense had available the following facts.

The applicant testified that he had lived his entire life in the Edge wood Road area. No evidence was presented to establish that applicant had any ties to Baltimore City. On the night of the rape, the applicant worked at a janitorial job in a state office building located near the place where the victim was abducted. Applicant stated that he got off from work at 9 p.m. and went home.

He said he borrowed a car from a Rico Johnson and drove to Baltimore where, he explained, he visited his girlfriend. The evidence concerning the girlfriend was far from persuasive. The applicant stated that even though he had been dating the girlfriend for several months, he knew her