State v. Purvey

THIEME, Judge. The State appeals the decision of the Circuit Court for Prince George’s County granting the petition of Hosea Eugene Purvey for post-conviction relief. A jury convicted Purvey of first-degree murder on July 17, 1990, and he was sentenced by the court to life in prison on September 27,1990. Purvey appealed his conviction to this court on October 29, 1990, and we dismissed the appeal on January 30, 1991.

He petitioned the circuit court for post-conviction relief on June 9, 1995, and the court granted a belated appeal to this Court. On August 9, 1996, we affirmed Purvey’s conviction in an unreported opinion. Purvey v. State, No. 1788, September Term, 1995, 111 Md.App. 748 (filed August 9, 199Q)(“Purvey I”). The Court of Appeals denied certiorari on December 12, 1996.

On December 4, 1997, Purvey filed a second petition in circuit court for post-conviction relief, and he supplemented it on June 23, 1998, alleging that he received ineffective assistance of counsel. After a hearing on June 30, 1998, the circuit court granted Purvey’s petition on September 3, 1998, ordering a new trial and adopting the Petitioner’s Proposed Findings of Fact and Conclusions of Law and his Memorandum of Law as part of the court’s opinion. On October 2, 1998, the State appealed, and it presents the following question: Did the post-conviction court err in granting Purvey a new trial when it concluded that his trial counsel failed to provide effective assistance of counsel? We answer “yes” to this question and reverse.

We explain. Facts In Purvey I, this Court summarized the evidence produced at trial as follows: ⁶ Albert Young and Joseph Harris, the vietim in this case, worked as laborers unloading produce trucks. On June 18, 1989, Young and Harris were awaiting a call from a trucker whose produce they were to unload at a Giant Food Store. At approximately 2:00 a.m., Harris told Young that he was going to Palmer’s Liquor Store, which was three or four blocks away, and that Young could reach him there when the trucker arrived.

From the record, we discern that the liquor store area was a well known drug area. Young located Harris behind the liquor store among a group of forty or fifty people. As Harris reached for his gym bag, several men ran through the area firing handguns. Everyone began running and Harris told Young that he had been shot.

Young called for help, but Harris died, either at the scene or shortly thereafter, from a chest wound. The bullet exited his body and was not recovered. The sole evidence linking appellant to the crime came from a statement he is alleged to have made to Detective Roberto Hylton. Appellant was arrested on June 27, 1989, after Germaine “Fung” Bolden implicated him in the shooting.

Appellant’s alleged oral statement to Hylton contained the following: He said he did not shoot anyone. It was Frank and Fung who did the shooting. He said that Fung, which is a nick name, is scared of Frank because they’ve been in Boys [sic] Village together for a long period of time. He said I was at Palmer’s Restaurant.

Frank and Fung met me there. We saw a boy by the name, the initial E. He hangs with the Jamaicans on a hill on Bell Haven Drive. He shoots at the young dealers when we go up to sell drugs. Then he continued, so he said, let’s bust Slim.[ 1 ] Frank, Fung and I said, I drove, I drove them, I drove them to ⁷ where the guns were stashed in my aunt’s white car.

We came back to Palmer’s. I don’t know who had which gun the .380 or the .38. Left the car on Flagstaff Street, on Fung’s Street. Fung is Germaine.

Frank and Fung fired a couple of shots. It hit the man. We ran to the car. I drove them to hide the gun.

We did, and we drove away. Frank took off his black T-shirt in the woods. The next day we drove to where the guns were. Frank got them.

We went to Seabrook skating. I think they’re at Frank’s house. Appellant denied giving this statement to Detective Hylton. He testified that he was at Palmer’s that evening selling drugs.

He alleged that Fung was also there selling drugs. He was going toward the store to buy a soda when he heard gunshots. Along with everyone else, and because he had cocaine on his person, he ran to his car and left the area. Purvey I, slip op. at 1-2 (some footnotes omitted).

Purvey produced two witnesses to testify at the post-conviction hearing held on June 30, 1998. Retired Police Detective Dennis Babcock had no recollection of Purvey’s arrest or prosecution, but testified, “apparently I was basically providing a service for [Detective] Hylton which was to pick up Mr. Purvey and bring him back to our office.” At the time he was questioned by Detective Hylton, Purvey was already in custody of the Prince George’s County Detention Center on an unrelated auto theft charge for which he had not posted bond. Purvey’s second witness was his trial counsel, Sean Cleary, who was questioned at length about representation he had provided eight years earlier. His specific testimony concerning Purvey’s post-conviction claims, as well as additional facts, will be included in the discussion below.

Discussion The State, as appellant, makes a simple argument that Purvey is not entitled to a new trial because his representation was constitutionally adequate. Purvey alleges four separate grounds why his counsel failed to meet the constitutional ⁸ standard and he should get a new trial. Additionally, he claims that the State cannot make certain legal arguments on appeal because those arguments were not raised in the second post-conviction hearing. We find Purvey’s arguments without merit and reverse the lower court’s judgment on his second post-conviction petition.

As a preliminary matter, we discuss the legal standard for a finding that assistance of counsel has been ineffective. We then turn to our second preliminary issue, whether the State can raise all its issues on appeal, before examining each of Purvey’s allegations of ineffective assistance. I Standard for Ineffective Assistance of Counsel Purvey must clear a high bar to prevail on his claim that counsel failed to provide representation comporting with the requirements of the Sixth Amendment of the United States Constitution. The Supreme Court set forth the standard for assessing this question in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984).

Maryland courts have expounded upon this standard extensively in cases arising in this State. See, e.g., Wiggins v. State, 352 Md. 580, 602-03 , 724 A.2d 1, 12 (1999); Oken v. State, 343 Md. 256, 283-85 , 681 A.2d 30, 43-44 (1996), cert. denied, 519 U.S. 1079 , 117 S.Ct. 742 , 136 L.Ed.2d 681 (1997); Gilliam v. State, 331 Md. 651 , 629 A.2d 685 (1993), cert. denied, 510 U.S. 1077 , 114 S.Ct. 891 , 127 L.Ed.2d 84 (1994); State v. Thomas, 328 Md. 541, 555-58 , 616 A.2d 365, 372-73 (1992), cert. denied, 508 U.S. 917 , 113 S.Ct. 2359 , 124 L.Ed.2d 266 (1993); State v. Colvin, 314 Md. 1, 5-7 , 548 A.2d 506, 508-09 (1988); State v. Calhoun, 306 Md. 692, 729-32 , 511 A.2d 461, 479-81 (1986), cert. denied, 480 U.S. 910 , 107 S.Ct. 1339 , 94 L.Ed.2d 528 (1987); State v. Tichnell, 306 Md. 428, 440-44 , 509 A.2d 1179, 1185-87 , cert. denied, 479 U.S. 995 , 107 S.Ct. 598 , 93 L.Ed.2d 598 (1986). Under Strickland , a convicted petitioner claiming that ineffective assistance of counsel renders his conviction or sentence invalid must demonstrate that i) “counsel’s representation fell ⁹ below an objective standard of reasonableness,” Strickland, 466 U.S. at 688 , 104 S.Ct. at 2064 , and that ii) he was actually-prejudiced, ie., “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694 , 104 S.Ct. at 2068 . In evaluating whether counsel’s representation was reasonable, the court must examine certain acts or omissions identified by the petitioner “in light of all the circumstances” to determine whether “the identified acts or omissions were outside the wide range of professionally competent assistance.” Id. at 690 , 104 S.Ct. at 2066 .

The court looks at the “reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct,” id., making every effort “to eliminate the distorting effects of hindsight.” Id. at 689 , 104 S.Ct. at 2065 . Review is highly deferential, for “[i]t 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. at 689 , 104 S.Ct. at 2065 . Under the Strickland standard, courts recognize that no single set of norms for vigorous advocacy defines what it is to receive adequate representation that ensures a fair trial. “There 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.

Thus, “the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101 , 76 S.Ct. 158, 164 , 100 L.Ed. 83 (1955)). Even if the defendant can show that counsel committed a professionally unreasonable error, he must also show that there is a reasonable probability, ie., probability sufficient to undermine confidence in the outcome, that “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. at 2068 . Counsel’s error ¹⁰ must have “deprive[d] the defendant of a fair trial, a trial whose result is reliable.” Id. at 687 , 104 S.Ct. at 2064 .

Maryland cases paraphrase this standard: the defendant “must show that there is a substantial possibility that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Oken, 343 Md. at 284 , 681 A.2d at 44 . “A proper analysis of prejudice ... should not focus solely on an outcome determination, but should consider “whether the result of the proceeding was fundamentally unfair or unreliable.’ ” Id. (quoting Lockhart v. Fretwell, 506 U.S. 364, 369 , 113 S.Ct. 838, 842 , 122 L.Ed.2d 180 (1993)). Under Strickland and our precedents, however, we need not resolve both of these nettlesome issues when one of the required prongs is clearly absent, neither must we examine them in any particular sequence. “The object of an ineffectiveness claim is not to grade counsel’s performance,” thus “[i]f 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.” Strickland, 466 U.S. at 697 , 104 S.Ct. at 2069 . Accord Oken, 343 Md. at 284-85 , 681 A.2d at 44 .

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 question of fact and law. Strickland, 466 U.S. at 698 , 104 S.Ct. at 2070 . 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.

See, e.g., Jones v. State, 343 Md. 448, 457 , 682 A.2d 248, 253 (1996). We will not, however, disturb the findings of fact and credibility determinations of the post-conviction court, unless they are clearly erroneous. Md. Rule 8-131(c); Oken, 343 Md. at 299 , 681 A.2d at 51 ; Tichnell, 306 Md. at 442-43 , 509 A.2d at 1186 . 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.” Id. at ¹¹ 443, 509 A.2d at 1186 (quoting Harris v. State, 303 Md. 685 , 496 A.2d 1074 (1985)).

II The State’s Preservation of Issues for Appeal Purvey asserts that this Court should not consider on appeal some of the reasoning with which the State bolsters its arguments, because it failed to preserve these “issues” for appeal by arguing them at the post-conviction hearing. For example, at the post-conviction hearing, Purvey argued that his lawyer did not adequately argue the motion to suppress the fruits of his arrest, which he claims was based on a faulty warrant. On appeal, the State augments its original response to this claim, which was based on Strickland , with an assertion that the police possessed probable cause to arrest Purvey. Therefore, post-conviction relief was inappropriate and he was not prejudiced by counsel’s perceived omission.

Purvey’s objections, such as this one, redirect attention from the primary issue faced by this Court. Under Md. Rule 8-131(a), the appellate court will not ordinarily decide any issue “unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal.” The primary purpose of this rule is “ ‘to ensure fairness for all parties in a case and to promote the orderly administration of the law.’” State v. Bell, 334 Md. 178, 189 , 638 A.2d 107, 114 (1994) (quoting Brice v. State, 254 Md. 655, 661 , 255 A.2d 28, 31 (1969)). Rule 8-131(a), however, anticipates exceptions and implies discretion. For example, “[t]he use of the word ‘ordinarily’ clearly contemplates both those circumstances in which an appellate court will not review issues if they were not previously raised and those circumstances in which it will.” 2 ¹² Id. at 188, 638 A.2d at 113 .

Our discretion is limited, however, to those times “when it is clear that it will not work an unfair prejudice to the parties or to the court.” Id. at 189 , 638 A.2d at 113 . “A criminal defendant could suffer unfair prejudice if, for example, the defendant’s response to a new argument posited by the State on appeal depends on evidence which was not offered in the trial court.” Id. at 189-90 , 638 A.2d at 113 . The instant appeal, however, does not require us to cast about for an exception under which to consider the State’s arguments, because we find that those arguments were presented in summary form during the post-conviction hearing. The State’s “new” arguments are merely a fleshing-out, usually with information from the record, of the skeletal theories raised at the hearing. As such, they are not new.

In both the post-conviction hearing and the briefs, the State has argued that defense counsel’s performance was not constitutionally deficient because, even had he advanced Purvey’s current theory in the trial court, the facts would not present adequate grounds for suppression of his statement to the police. Although presenting more detailed arguments might have been desirable, the State addressed the ultimate issue of whether Purvey had suffered ineffective assistance of counsel, at least in the general sense, at the post-conviction hearing. If the State, for example, had argued in the post-conviction hearing that only one prong of Strickland applied here, it might have been limited on appeal to relying on that single prong. The State, however, based its theory on both prongs of Strickland and now bolsters its reasoning with more specific information.

The instant appeal, moreover, is distinguishable from the cases cited by Purvey and numerous cases in which we and the Court of Appeals have declined to entertain issues brought by one side or the other for the first time on appeal. In distinguishable cases, such as State v. Bell, 334 Md. 178 , 638 ¹³ A.2d 107, defendants have often argued successfully on direct appeal from conviction that the State brought during the appellate process new legal justifications for the potentially unconstitutional actions of police. See id. at 190 , 638 A.2d at 113 (holding that the Court of Special Appeals did not err when it declined to address question raised by State for first time on appeal of whether probable cause existed for second warrantless search). In contrast, we are now one step removed from that original appellate process.

The ultimate issue before the post-conviction court, and this Court, is the adequacy of Purvey’s defense attorney’s performance, not the constitutionality of his arrest. The same attorney that Purvey claims failed him argued vociferously at his suppression hearing that Purvey’s statement to police lacked voluntariness and that the police violated his Sixth Amendment right to counsel. During the post-conviction hearing, that attorney recalled that his client did not, at the time of the trial, challenge the validity of his arrest, just “that he did not say what they claimed he had said.” It appears, then, that Purvey is using the petition process and an allegation of ineffective assistance of counsel as a Trojan Horse to bear the additional constitutional issues he failed to raise during his trial and the first post-conviction petition and appeal. We scrutinize only the horse itself, and not the surprises it contains, and reach our decision based upon our independent evaluation of the findings of the lower court under Strickland.

Oken, 343 Md. at 299, 681 A.2d at 51 . Ill Purvey’s Specific Contentions During the post-conviction hearing, Purvey raised four grounds upon which the circuit court found that he was denied effective assistance of counsel under the Sixth Amendment. We find, on each of these grounds, that Purvey failed to clear the high bar set in Strickland , and we thus reverse the order of the lower court for post-conviction relief. We address each issue in turn. ¹⁴ A Failure to Make Alternative Argument to Suppress Purvey’s Statement Police questioned Purvey in connection with the shooting after they removed him from the custody of sheriffs deputies in the Prince George’s County Detention Center, where he was being held on an unrelated charge.

The record shows that Detective Babcock, bearing a warrant for Purvey’s arrest, transported him to the Prince George’s County Criminal Investigations Department, so that Detective Hylton might question him. Police obtained the affidavit in support of the warrant based on the statements of Purvey’s co-defendant, Jermaine “Fung” Bolden. The record shows that Cleary filed a written motion to suppress prior to trial. He argued vigorously at a suppression hearing held on July 17, 1990, that Purvey’s statement to police should be suppressed because it was involuntary.

Moreover, he argued that police had violated Purvey’s right to counsel under the Sixth Amendment. At the post-conviction hearing, Cleary recalled that at the time his client did not challenge how the statement was taken, but only maintained “that he did not say what they claimed he said.” 3 Purvey argued at the post-conviction hearing that counsel was ineffective for failing to move to suppress the statement because police lacked probable cause to arrest him. Purvey also argued that the action of removing him from the custody of the sheriff without his consent for the purpose of interroga ¹⁵ tion violated the Fourth Amendment of the United States Constitution and Md.Code (1957, 1998 Repl.Vol.), Art. 87, § 45 (duties to sheriff to keep custody of county prisoners until such persons are “discharged by due course of law”), and Md.Code (1957, 1996 Repl.Vol.), Art. 27, § 46 (duties of the sheriff toward prisoners). From the evidence presented at the post-conviction hearing, we discern that Purvey’s arrest warrant was valid.

Purvey’s post-conviction counsel argues, based on the testimony of Detectives Babcock and Hylton, that the sole probable cause possessed by the State concerning Purvey’s culpability was “Fung” Bolden’s statement to police. Bolden was a co-defendant. Maryland cases show that a co-defendant’s statement to authorities may provide sufficient probable cause for issuing an arrest warrant. See Mefford v. State, 235 Md. 497 , 201 A.2d 824 (1964), cert. denied, 380 U.S. 937 , 85 S.Ct. 944 , 13 L.Ed.2d 825 (1965) (arrest of defendant was legal where co-defendant had already confessed and turned over murder weapon).

See also Hopkins v. State, 239 Md. 517 , 211 A.2d 831 (1965); Boone v. State, 2 Md.App. 80 , 233 A.2d 476 (1967); Cherrix v. Warden, 1 Md.App. 65 , 227 A.2d 50 (1967). Probable cause in the context of a warrant for a person’s arrest means “probable cause to believe that an offense has been committed and also probable cause to believe that the person to be arrested committed it.” Giordenello v. United States, 357 U.S. 480, 483-84 , 78 S.Ct. 1245, 1249 , 2 L.Ed.2d 1503 (1958) (quoting Fed. R.Crim. Pro. 5(c)). Of course, the testimony of a co-defendant or other third person must be reasonably trustworthy.

Hopkins, 239 Md. at 520 , 211 A.2d at 833 . Here, it was clear that an offense had been committed, and Purvey fails to show that Bolden’s statement did not give police probable cause to believe that Purvey was a culpable party. Purvey’s post-conviction counsel correctly points out that the statements of co-defendants are not always considered reliable at trial. See Lilly v. Virginia, 527 U.S. 116 , 119 S.Ct. 1887 , 144 L.Ed.2d 117 (1999) (holding that admission at trial of non-testifying accomplice’s statement against penal ¹⁶ interest violates defendant’s rights under the Confrontation Clause and noting that such statements are inherently unreliable); Williamson v. United States, 512 U.S. 594, 599-600 , 114 S.Ct. 2431, 2435 , 129 L.Ed.2d 476 (1994) (interpreting Fed. R.Evid. 804(b)(3) on statements against interest and stating that “[o]ne of the most effective ways to lie is to mix falsehood with truth, especially truth that seems particularly persuasive because of its self-inculpatory nature.”); Lee v. Illinois, 476 U.S. 530 , 106 S.Ct. 2056 , 90 L.Ed.2d 514 (1986) (holding that trial court’s reliance on co-defendant’s statement, given only after he had been told that defendant had implicated him, was presumptively unreliable).

For one to be convicted of a criminal offense at trial, however, a co-defendant’s statement must be sufficiently reliable to allow the trier of fact to find guilt beyond a reasonable doubt. In contrast, for police to obtain a warrant for arrest, a co-defendant’s statement must only be so reliable as to provide probable cause, a weaker evidentiary standard. The cases are thus distinguishable from the instant case. Furthermore, at the post-conviction hearing, Purvey failed to show why Bolden’s statement would have been so unreliable as to not support probable cause.

He, not the State, bore the burden of proof on this point. See Green v. Warden, 3 Md.App. 266 , 238 A.2d 920 (1968) (holding where nothing in testimony of applicant for post-conviction relief indicated that his arrest was illegal and no such evidence was offered, petitioner was not entitled to relief on grounds that conviction was based on illegal search and seizure). Finally, the post-conviction court relied on Dunaway v. New York, 442 U.S. 200 , 99 S.Ct. 2248 , 60 L.Ed.2d 824 (1979), which is inapposite to the facts at hand. In Dunaway , the Court held that Fourth Amendment probable cause attached during the involuntary restraint and questioning of a perpetrator who had not yet been arrested.

In contrast, before they questioned Purvey, police had probable cause and obtained a warrant, thus meeting their obligation under Dunaway before questioning began. Because his arrest did not offend the Fourth and Fourteenth Amendments, we need not even address the issue ¹⁷ of whether Detective Babcock needed Purvey’s consent to take him into custody. Consent is simply unnecessary when police have obtained a valid arrest warrant. In view of Purvey’s facially valid arrest, Cleary was under no professional obligation to argue Fourth Amendment issues at the suppression hearing.

Neither is it likely that doing so would have changed the outcome of the suppression hearing or the trial. Whether another attorney might have done so in good faith to cover all contingencies is immaterial under Strickland’s rule. We thus find that Purvey did not suffer ineffective