State v. Smith

RAYMOND G. THIEME, JR., J. (Retired, specially assigned). Following a jury trial on January 6-8, 2009, Zenno Smith, III, appellee, was convicted of first-degree felony murder, first-degree burglary, and possession of a handgun after having been convicted of a felony. He was sentenced to life imprisonment for the murder conviction and a consecutive term of five years for possession of a handgun.

The burglary conviction was merged for sentencing purposes. Smith’s convictions were affirmed by this Court in an unreported opinion, Zenno Smith, III v. State, No. 184, Sept. Term 2009 (filed September 29, 2010). Smith filed a petition for writ of certio- ²⁰ rari that was denied by the Court of Appeals. See Smith v. State, 417 Md. 502 , 10 A.3d 1181 (2011).

Thereafter, Smith filed a petition seeking post-conviction relief. On April 15, 2013, the Circuit Court for Caroline County granted Smith’s petition. The State filed an application for leave to appeal, which we granted. QUESTIONS PRESENTED The State presents the following questions for our consideration: I. Was Smith’s trial counsel not legally entitled to have objected to the nolle prosequis?

II

Even if entitled to object, did Smith’s counsel have a valid tactical reason for not objecting to the trial judge’s granting the nolle prosequi to the second-degree felony murder charge? For the reasons set forth more fully below, we shall affirm. PROCEDURAL AND FACTUAL BACKGROUND Smith was charged in the Circuit Court for Caroline County with the following crimes arising out of the shooting death of Ronald Gibson on June 15, 2008: Count 1—first-degree murder Count 2—second-degree murder Count 3—first-degree burglary Count 4—first-degree assault Count 5—second-degree assault Count 6—handgun use in the commission of a felony Count 7—accessory after the fact to first-degree murder Count 8—accessory after the fact to second-degree murder Count 9—felon in possession of a firearm We provided a detailed recitation of the underlying facts in our unreported opinion on direct appeal, which we include here for ease of reference: ²¹ The evidence adduced at trial revealed the following events leading to Gibson’s death. Trooper Derek Carabello, assigned to the Easton Barrack of the Maryland State Police, testified that on June 15, 2008, he responded to a call for a report of a possible shooting at a trailer park in Caroline Acres.

When Trooper Carabello arrived at the scene he saw Gibson lying face down just inside the threshold of the doorway to the trailer. Initially, Trooper Cara-bello detected a faint pulse from Gibson, but later, after searching the trailer for officer’s safety, Trooper Carabello found no pulse. Sergeant Nancy Nagel, assigned to the Caroline County Sheriffs Department, testified that she arrived at the scene shortly after Trooper Carabello, and noticed that the front door, the storm door, and the entry door were both opened and that there was a broken locking latch laying on the deck. Sergeant Nagel stated that in searching the residence, she recovered a long barrel 12 gauge shotgun propped up against a sofa.

In checking the gun for safety, Sergeant Nagel indicated that there was no ammunition inside the gun. Dominique Fountain (“Dominique”) 1 testified that on June 14, 2008, his mother, Tonyett Fountain (“Tonyett”), and appellant, who was Tonyett’s boyfriend, went to Gibson’s mother’s home located in Cordova, Maryland to “get my mom’s dog.” At that time, Gibson was engaged to marry Tonyett’s mother, Denise Fields. Appellant, To-nyett, and Dominique took the dog to their home in Dover, Delaware. According to Dominique, after the retrieval of the dog, Gibson called Tonyett and told her that she was a “bitch” and that, if the dog was not returned, she was not going to “live to see tomorrow.” Dominique stated further that he, Tonyett, and appellant, who was armed with a loaded .45 caliber handgun, drove to ²² Gibson’s home in the Caroline Acres trailer park in Henderson, Maryland to make peace with Gibson.

During the drive, there were discussions about a gun that Gibson kept in his home. When they arrived, Dominique asked appellant to give him the handgun because he “felt that it would have been more safer with [him] and nothing like that would have happened.” Appellant complied and Dominique put the gun in his pants pocket. Dominique admitted that it was unusual for them to take a gun when visiting Gibson. During cross-examination, Dominique testified that during his interview with police, he told them that at some point, appellant stepped out onto the balcony, but came back inside before Gibson was shot.

When asked by defense counsel if Dominique remembered telling the police that appellant “remained outside” when the shot was fired, he answered “[n]o.” Approximately twenty minutes after leaving Gibson’s trailer, Dominique and Tonyett were stopped by Corporal Christopher Emerick of the Maryland State Police. At that time, appellant was not in the vehicle. When Dominique exited the vehicle, the handgun he used to shoot Gibson fell from his lap. Katheryn Holland (“Katheryn”), Gibson’s neighbor, testified that immediately before the shooting, she heard loud noises and banging coming from Gibson’s trailer.

After hearing a gunshot, she looked outside and saw “three people coming out of the residence and stand on [Gibson’s] deck,” and “[t]hey were all talking and smiling at each other and just conversing for a few minutes there on the deck.” After a few minutes, the three people left. Katheryn stated that she was only able to see the faces of two of the people, which she later identified as Tonyett and appellant. Katheryn asked her husband, Richard Holland (“Richard”), to go over to Gibson’s trailer and “make sure everything was all right” because she noticed that the door to Gibson’s trailer was open. After a few minutes, Richard was “flagging his arms” and telling her to call 911 because Gibson had been shot. ²³ Richard testified that he went outside and obtained To-nyett’s tag number.

After appellant, Tonyett and Dominique departed, he entered Gibson’s home and discovered that Gibson had been shot but was still alive. Richard stated that he moved the shotgun that was laying across Gibson and tried to make him comfortable. When he asked Gibson who shot you, Gibson told him who was involved in the shooting. Gibson succumbed to his injuries shortly thereafter.

Appellant did not testify or present any witnesses. Throughout the trial, the State proceeded on the theory of first-degree felony murder based on the statutory felony of first-degree burglary. Smith’s defense was that all of the parties had gone to the victim’s residence solely for a peaceful encounter with the victim, to talk, and to “mend fences,” and that Smith did not “want anything to do with a confrontation, that’s not why he was there.” At the conclusion of the State’s case, and after the court’s denial of Smith’s motion for judgment of acquittal with respect to the burglary and felony murder charges, the State advised the court that it would enter nolle prosequis for the counts charging second-degree felony murder, first-degree assault, second-degree assault, and use of a handgun in the commission of a felony. The prosecutor commented that those charges were not lesser included offenses of felony murder and that they “could have been presented but ... they raise an entire spectrum of imperfect third person self defense which will not apply to felony murder and that’s the State’s reason for, simplifying what is, you know, certainly, honestly a complex although in some ways simple and some ways complex case.” Trial counsel did not object to the State’s request to enter nolle prosequis for the four counts.

Subsequently, the State also entered a nolle prosequi as to the charge of accessory after the fact to second-degree murder. Ultimately, Smith was convicted of first-degree felony murder, first-degree burglary, and possession of a handgun after having been convicted of a felony. ²⁴ Smith sought post-conviction relief, arguing ineffective assistance of trial counsel for the following reasons: 1. At the close of the State’s case trial counsel failed to object when the State entered a nol pros on the charges of 2nd Degree Murder, 1st Degree Assault, Handgun Use During a Felony or Violent Crime, and Accessory After the Fact to 2nd Degree Murder. 2. Generally, counsel failed to object in order to preserve meritorious issues for appeal. 3.

At the beginning of the third day of trial, counsel failed to request dismissal of a juror who may have seen Petitioner in shackles. 4. After the trial, counsel failed to request a review of Petitioner’s sentence by a three judge panel. 5. At the pre-trial stage, counsel failed to adequately investigate and prepare his defense. 6. During the voir dire of the jury, counsel failed to object to the Court’s failure to ascertain whether the jurors had a handgun bias. 7.

During the State’s case, counsel failed to present or adequately utilize photographs to impeach the Officer’s testimony. 8. At the motion for judgment of acquittal, counsel failed to argue sufficiently and with particularity that burglary was not proven because there had been no breaking. 9. Counsel failed to object that the felony murder jury instruction was deficient. 10. Counsel failed to request jury instructions for self-defense and imperfect self-defense.

The post-conviction court found that Smith’s trial counsel rendered ineffective assistance by failing to object to the State’s entry of nolle prosequis for five of the charges against him and, thereby, failing to preserve meritorious issues for appeal. Specifically, the post-conviction court held that the State’s entry of nolle prosequis “effectively removed all the counts underlying the second degree felony murder theory of ²⁵ the case and operated to the substantial detriment of [Smith].” The post-conviction court rejected the State’s argument that second-degree murder is not a lesser included offense of felony murder, noting that Smith’s case did not involve an allegation of second-degree murder of the intent-to-kill variety. The court stated: The only possible theory of either first or second degree murder the State could pursue against [Smith] would be felony murder. The State’s theory of first degree felony murder was predicated on first degree burglary, which required intent to commit first degree assault, the only crime of violence outlined in Section 14-101 [of the Criminal Law Article][ 2 ] applicable to this case.

First degree assault would however have also supported a conviction for second degree felony murder. (Internal footnote omitted). The court concluded that if trial counsel had objected on this issue, the second-degree felony murder charge might have reached the jury and the verdict might have been different. Following the grant of post-conviction relief, the State filed an application for leave to appeal, which we granted.

DISCUSSION I. The State first contends that Smith’s trial counsel was not legally entitled to object to the nolle prosequi of the second-degree felony murder charge because it was not a lesser included offense of first-degree felony murder. Alternatively, the State asserts that even if trial counsel was entitled to object to the entry of the nolle prosequis, his election not to do ²⁶ so under the facts of this particular case was “a sound, deliberate strategic decision.” We disagree and explain. A. Standard of Review The Sixth Amendment to the United States Constitution guarantees all criminal defendants the right to the assistance of counsel. Strickland v. Washington, 466 U.S. 668, 684-85 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984).

Both the United States Supreme Court and the Court of Appeals have recognized that “the right to counsel is the right to the effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759 , 771 n. 14, 90 S.Ct. 1441 , 25 L.Ed.2d 763 (1970); Mosley v. State, 378 Md. 548, 557 , 836 A.2d 678 (2003). In order to prevail on a claim of ineffective assistance of counsel, a defendant must establish that trial counsel’s performance was constitutionally deficient and that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687 , 104 S.Ct. 2052 ; Mosley, 378 Md. at 557 , 836 A.2d 678 . In discerning whether counsel’s performance was deficient, we start with the presumption that he or she “rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690 , 104 S.Ct. 2052 ; Bowers v. State, 320 Md. 416, 421 , 578 A.2d 734 (1990).

Our review of counsel’s performance is “highly deferential.” Kulbicki v. State, 440 Md. 33, 46 , 99 A.3d 730 (2014). We look to whether counsel’s “representation fell below an objective standard of reasonableness.” Harris v. State, 303 Md. 685, 697 , 496 A.2d 1074 (1985). We assess reasonableness as of “the time of counsel’s conduct.” Strickland, 466 U.S. at 690 , 104 S.Ct. 2052 . To satisfy the prejudice prong of Strickland , a defendant must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694 , 104 S.Ct. 2052 . The ultimate inquiry is whether “ ‘counsel’s errors were so serious as to deprive [the petitioner] of a fair trial, a trial whose result is reliable.’ ” Oken v. ²⁷ State, 343 Md. 256, 284 , 681 A.2d 30 (1996) (quoting Strickland, 466 U.S. at 687 , 104 S.Ct. 2052 ). Determinations by the post-conviction court regarding ineffective assistance of counsel claims are mixed questions of law and fact. State v. Purvey, 129 Md.App. 1, 10 , 740 A.2d 54 (1999).

We will not disturb the factual findings of the post-conviction court unless they are clearly erroneous. Evans v. State, 151 Md.App. 365, 374 , 827 A.2d 157 (2003); State v. Jones, 138 Md.App. 178, 209 , 771 A.2d 407 (2001). We will make our own independent analysis, however, based on our own judgment and application of the law to the facts, of whether the State violated a Sixth Amendment right. Jones, 138 Md.App. at 209 , 771 A.2d 407 .

Absent clear error, we defer to the post-conviction court’s historical findings, but we conduct our own review of the application of the law to the defendant’s claim of ineffective assistance of counsel. Evans, 151 Md.App. at 374 , 827 A.2d 157 (citing Cirincione v. State, 119 Md.App. 471, 485 , 705 A.2d 96 (1998)). B. Nolle Prosequi A nolle prosequi is simply the State’s abandonment of a charging document, count, or part of a count. Ward v. State, 290 Md. 76, 83 , 427 A.2d 1008 (1981).

A nolle prosequi may be entered to a degree of an offense. State v. Ward, 284 Md. 189, 208 , 396 A.2d 1041 (1978). Maryland Rule 4-247, which governs dispositions by nolle prosequi, provides, in part, as follows: (a) Disposition by nolle prosequi. The State’s Attorney may terminate a prosecution on a charge and dismiss the charge by entering a nolle prosequi on the record in open court.

The defendant need not be present in court when the nolle prosequi is entered, but if neither the defendant nor the defendant’s attorney is present, the clerk shall send notice to the defendant, if the defendant’s whereabouts are known, and to the defendant’s attorney of record. Notice shall not be sent if either the defendant or the defendant’s attorney was present in court when the nolle prosequi was ²⁸ entered. If notice is required, the clerk may send one notice that lists all of the charges that were dismissed. As a general rule, the entry of a nolle prosequi is within the sole discretion of the prosecuting attorney, “free from judicial control and not dependent upon the defendant’s consent.” Ward, 290 Md. at 83 , 427 A.2d 1008 .

C. Hook and its Progeny The prosecutor’s power to enter a nolle prosequi is not without restraint. Hook v. State, 315 Md. 25, 36 , 553 A.2d 233 (1989) (citing United States v. Batchelder, 442 U.S. 114, 124 , 99 S.Ct. 2198 , 60 L.Ed.2d 755 (1979)). In Hook , the Court of Appeals explained that while entry of a nolle prosequi is generally within the prosecutor’s sole discretion, that power is not absolute: When the defendant is plainly guilty of some offense, and the evidence is legally sufficient for the trier of fact to convict him of either the greater offense or a lesser included offense, it is fundamentally unfair under Maryland common law for the State, over the defendant’s objection, to not pros the lesser included offense. ... In short, it is simply offensive to fundamental fairness, in such circumstances, to deprive the trier of fact, over the defendant’s objection, of the third option of convicting the defendant of a lesser included offense.

Hook, 315 Md. at 43-44 , 553 A.2d 233 . Hook was charged with the murder of two people and related offenses. Id. at 32 , 553 A.2d 233 . At the close of the evidence, the prosecutor entered a nolle prosequi as to the charge of second-degree murder.

Id. at 35 , 553 A.2d 233 . Evidence was presented at trial that Hook was intoxicated at the time the murders were committed. Had the jury determined that Hook was so intoxicated as to lack the requisite specific intent, a conviction of first-degree premeditated murder would have been precluded. As a result, defense counsel objected to the nolle prosequi arguing that, under the circumstances, the failure to submit the second-degree murder count ²⁹ to the jury was a violation of Hook’s due process rights, fundamental fairness, equal protection, and an abuse of prose-cutorial discretion.

Id. The Court determined that there was evidence to support the charge of second-degree murder as well as unequivocal evidence that Hook had murdered two individuals. As a result, the entry of the nolle prosequi left the jury with the “Hobson’s choice” 3 *******11to either convict Hook of first-degree murder or return a verdict of not guilty. Id. at 38 , 553 A.2d 233 .

The entry of the nolle prosequi thereby enhanced the risk of an unwarranted conviction and denied Hook a fair trial. Id. at 41-42 , 553 A.2d 233 . In reaching that conclusion, the Court called for a case-by-case evaluation to determine whether, under the particular circumstances of a case, the entry of a nolle prosequi for a charge would contravene fundamental fairness. With regard to fundamental fairness, the Court cautioned: “In order to declare a denial of [fundamental fairness, the reviewing court] must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevent a fair trail.... ” Id. at 36-37 , 553 A.2d 233 (quoting Lisenba v. California, 314 U.S. 219, 236 , 62 S.Ct. 280 , 86 L.Ed. 166 (1941)).

The Hook exception was discussed and applied in Fairbanks v. State, 318 Md. 22 , 566 A.2d 764 (1989). Fairbanks was charged with burglary, misdemeanor breaking and entering, ³⁰ felony daytime housebreaking, and theft. Over objection, the prosecutor entered nolle prosequis as to misdemeanor breaking and entering and theft. In holding that the trial judge committed reversible error, the Court of Appeals stated: The entry of the nolle prosequi over the defendant’s objection in this case foreclosed the possibility of a guilty verdict of less than burglary.

The jury had the singular choice of convicting Fairbanks of burglary under Counts 1 or 3, or finding him not guilty of any crime. In the circumstances, we think the refusal of the trial court to permit the lesser included offense of misdemeanor breaking and entering to go to the jury was prejudicial error under the fundamental fairness concepts delineated in Hook that deprived Fairbanks of a fair trial. Fairbanks, 318 Md. at 26-27 , 566 A.2d 764 . Subsequently, the rule in Hook was clarified in Jackson v. State, 322 Md. 117 , 586 A.2d 6 (1991).

Jackson was charged with both possession and distribution of cocaine and other charges. Jackson, 322 Md. at 123 , 586 A.2d 6 . Several police officers conducting drug surveillance observed Jackson and another man selling cocaine on several occasions and witnessed the exchange of currency and baggies containing a white substance. Id. at 125 , 586 A.2d 6 .

Over objection, the State entered a nolle prosequi as to the possession charges and Jackson was ultimately convicted of distribution. Id. at 123-24 , 586 A.2d 6 . In the Court of Appeals, Jackson argued that under Hook the jury was required to have the option of convicting him of the lesser included offense of possession. Id. at 127 , 586 A.2d 6 .

In rejecting that argument, the Court acknowledged that Jackson satisfied the first step in the Hook test, in that a rational jury could have found him guilty of some offense, and that there was legally sufficient evidence from which a jury could have convicted him of possession as well as distribution. But the Court noted that the evidence adduced at trial did not fairly support a conviction on the nol prossed counts. Id. at 126 , 586 A.2d 6 . Under these circumstances, the Court ³¹ agreed with the view expressed in our opinion on the case, that “ ‘it would have been an affirmative nuisance ‘to muddy