State v. Wallace

State of Maryland v. Charles Edward Wallace, No. 1414, Sept. Term 2019. Opinion filed on August 26, 2020, by Berger, J. POSTCONVICTION - INEFFECTIVE ASSISTANCE OF COUNSEL - REMEDY When trial counsel rendered ineffective assistance of counsel by failing to object to an erroneous jury instruction on attempted second-degree murder, the appropriate remedy was not vacatur of all charges. Rather, the court must consider the specific elements of each offense and the specific erroneous instruction when determining which convictions were tainted by the erroneous instruction. In this case, the appropriate remedy was vacatur of the second-degree attempted murder conviction only.

POSTCONVICTION - INEFFECTIVE ASSISTANCE OF COUNSEL - BAD ACTS EVIDENCE - MOTIVE Trial counsel was not ineffective in failing to challenge the admissibility of the victim’s testimony about the petitioner having slashed the victim’s tires approximately six years prior to the shooting. Trial counsel did not perform deficiently in conceding the admissibility of this testimony because the testimony was potentially relevant to the petitioner’s motive as well as to the identity of the shooter. POSTCONVICTION - INEFFECTIVE ASSISTANCE OF COUNSEL - FAILURE TO OBJECT - CRIME OF VIOLENCE INSTRUCTION Trial counsel’s performance was deficient when she failed to object when the trial court informed the jury that the petitioner had previously been convicted of a crime of violence in the context of its instructions regarding the charged firearm offenses, but the petitioner was unable to demonstrate how he was prejudiced by this deficiency. POSTCONVICTION - INEFFECTIVE ASSISTANCE OF COUNSEL - CUMULATIVE EFFECT The petitioner was not entitled to postconviction relief due to the cumulative effect of trial counsel’s errors when there were only two clear-cut instances of deficient performance: trial counsel’s failure to object to the defective jury instruction for attempted second-degree murder and trial counsel’s failure to object to the misstatements of the stipulation, which erroneously informed the jury that the petitioner previously had been convicted of a crime of violence.

The prejudicial effect of the first deficiency was limited to the attempted second-degree murder offense, and the second deficiency resulted in no prejudice. The petitioner was entitled to vacatur of the attempted second-degree murder conviction only. Circuit Court for Anne Arundel County Case No. 02-K-10-002013 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1414 September Term, 2019 ______________________________________ STATE OF MARYLAND v. CHARLES EDWARD WALLACE ______________________________________ Berger, Wells, Salmon, James P. (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Berger, J. ______________________________________ Filed: August 26, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.

Suzanne Johnson 2020-08-26 15:16-04:00 Suzanne C. Johnson, Clerk A jury sitting in the Circuit Court for Anne Arundel County found appellee, Charles Wallace, guilty of attempted second-degree murder, first- and second-degree assault, use of a handgun in the commission of a crime of violence, possession of a regulated firearm after previously having been convicted of a crime of violence, and reckless endangerment.1 The court thereafter sentenced Wallace to a term of thirty years’ imprisonment for attempted second-degree murder, a consecutive term of twenty years’ imprisonment (the first five without the possibility of parole) for use of a handgun in the commission of a crime of violence, and a concurrent term of five years’ imprisonment, without the possibility of parole, for possession of a regulated firearm after previously having been convicted of a crime of violence, merging the remaining convictions for sentencing purposes. Wallace noted a direct appeal,2 and, in an unreported opinion, a panel of this Court affirmed his convictions. Wallace v. State, Sept. Term, 2012, No. 557 (filed July 11, 2013) (“Wallace I”). Wallace subsequently filed a petition, under the Maryland Uniform Postconviction Procedure Act, seeking vacatur of his convictions.

In his petition, Wallace alleged that his trial counsel had been ineffective in three ways: first, in failing to object to an erroneous jury instruction for attempted second-degree murder; second, in conceding the admissibility of “other crimes” evidence which, purportedly, was inadmissible; and third, 1 The jury acquitted Wallace of attempted first-degree murder. 2 In his direct appeal, Wallace raised two issues: whether the trial court had erred in denying his motion to suppress evidence, and whether it had erred in admitting gunshot residue evidence. Wallace v. State, Sept. Term, 2012, No. 557, slip op. at 2 (filed July 11, 2013). Neither of those issues is pertinent to this appeal. in failing to object to the trial court’s erroneous and prejudicial statements to the jury, when explaining the firearm possession offense, that Wallace previously had been convicted of a crime of violence. Following a hearing, the postconviction court issued a memorandum opinion and order granting Wallace’s petition and awarding him a new trial.

The State filed a motion for reconsideration, which was denied. The State then filed an application for leave to appeal.3 Although the State conceded that trial counsel had been ineffective in failing to object to the erroneous attempted second-degree murder jury instruction, it contended that Wallace was entitled only to vacatur of that conviction and that the postconviction court erred in granting a new trial as to all outstanding charges. An applications panel of this Court granted the State’s application and transferred the case to the regular appellate docket. In this appeal, the State raises two issues, which we have re-phrased: I. Whether the postconviction court erred in awarding Wallace a new trial rather than vacatur of the attempted second-degree murder conviction; and II.

Whether the postconviction court abused its discretion when, in its revised order, it reversed the findings it had articulated in its memorandum opinion and provided no support for the change in course. 3 After the postconviction court initially ruled in favor of Wallace, the State filed a motion for reconsideration. After Wallace filed a response, the postconviction court issued an order denying the State’s motion for reconsideration and “clarify[ying]” (and amending) its previous order. Because the State’s application for leave to appeal was filed within 30 days of the entry of both the original and the amended orders, the latter order is properly the subject of this appeal. 2 For the reasons that follow, we vacate the postconviction court’s order and remand with instructions to vacate the attempted second-degree murder conviction but otherwise deny the postconviction petition. Given our resolution of this appeal, we need not and shall not address the second issue.

BACKGROUND The Crimes We quote our unreported opinion in Wallace’s direct appeal for factual context: Steven Freeman (“Freeman”), the victim, testified that he has known Wallace for more than ten years and refers to him by his nickname, “Junior.” Freeman knew Wallace from their neighborhood but testified that they were not friends. According to Freeman, Wallace would try to sell him drugs, but Freeman refused to buy any because Wallace tried to sell “fake” drugs. Freeman explained that Wallace would become angry and aggressive when he refused to buy drugs from him. Freeman further testified that on one occasion, Wallace “flattened [his] front tire[.]” On September 25, 2010, Freeman went to Madison Street on three different occasions to buy drugs.

The third time Freeman went to purchase narcotics, at approximately 5:00 a.m., Freeman saw Wallace and an unknown man on Madison Street while he was waiting for his seller to come outside. Thereafter, Wallace approached Freeman’s car and asked him if he “needed something.” Freeman replied that he was waiting for someone else and did not want to buy drugs from Wallace because the drugs were fake. According to Freeman, Wallace became aggressive, argumentative, and “turned like he was starting to walk away and then . . . said ‘Well, take this, then,’ And that’s when [Wallace] turned around with the gun[.]” Freeman testified that Wallace shot him in the arm and then he “threw the car in reverse real quick . . . and that’s when the second bullet went through [his] chest.” Freeman hit the emergency OnStar button in his car when he was pulling out of the street and told the operator that he had been shot by a man named “Junior.” 3 Wallace I, slip op. at 2-3. Trial A ten-count indictment subsequently was returned, in the Circuit Court for Anne Arundel County, charging Wallace with attempted murder in the first-degree, attempted murder in the second-degree, assault in the first-degree, assault in the second-degree, use of a handgun in the commission of a felony, use of a handgun in the commission of a crime of violence, carrying a concealed weapon, possession of a regulated firearm after previously having been convicted of a crime of violence, possession of a regulated firearm after previously having been convicted of a disqualifying crime, and reckless endangerment.

A jury trial ensued. In addition to the victim’s testimony, a shirt worn by Wallace on the night of the shooting was admitted into evidence; forensic testing disclosed the presence of gunshot residue on that shirt. Wallace I, slip op. at 16-22. Ultimately, eight counts of the indictment were presented to the jury,4 and Wallace was acquitted of attempted first-degree murder but convicted of the remaining offenses.

Postconviction Rulings To provide context for our analysis, we set forth the postconviction court’s rulings, both in its original memorandum opinion and its amended order. 4 The trial court granted a judgment of acquittal on the concealed weapon charge, and the State entered a nolle prosequi to the charge of use of a handgun in the commission of a felony. 4 In its memorandum opinion, the postconviction court determined that trial counsel’s failure to object to the concededly erroneous attempted second-degree murder jury instruction constituted deficient performance which caused prejudice to Wallace. In a footnote elsewhere in its opinion, it further declared, without explanation, that the proper remedy for that ineffective assistance was a new trial on all charges. As for trial counsel’s concession that purportedly inadmissible “other bad acts” evidence was admissible, the postconviction court, in its memorandum opinion, found that, although the evidence was inadmissible, trial counsel’s concession could be deemed trial strategy, and it declined to find deficient performance. As for trial counsel’s failure to object to the trial court’s statements, informing the jury that Wallace previously had been convicted of a “crime of violence,” the postconviction court found deficient performance but no prejudice “solely based on this particular deficient performance.” The postconviction court then proceeded to address whether the cumulative effect of all trial counsel’s errors was sufficient to result in ineffective assistance. 5 The postconviction court declared that the “combination of the three allegations” raised in Wallace’s petition amounted to deficient performance, that prejudice had ensued, and that Wallace was entitled to a new trial.

In response to the State’s motion for reconsideration, the postconviction court issued an amended order. The amended order not only denied the State’s motion for 5 Wallace’s petition did not raise a “cumulative effect” claim. We express no opinion as to the propriety of the postconviction court addressing such a claim sua sponte. 5 reconsideration, it further declared, among other things, “that the Memorandum Opinion entered June 13, 2019 shall be clarified to reflect the Court’s finding that trial counsel’s failure to object to the prior bad acts evidence was an error and amounts to deficient performance;” and “that the Memorandum Opinion entered June 13, 2019 shall be clarified to reflect the Court’s finding that the cumulative effect of trial counsel’s errors clearly resulted in denial of effective assistance of counsel[.]” Additional facts will be recited where pertinent to the issues. DISCUSSION Standard of Review “The ultimate question of whether counsel was ineffective ‘is a mixed question of law and fact.’” State v. Thaniel, 238 Md. App. 343, 359-60 (quoting Newton v. State, 455 Md. 341, 352 (2017)), cert. denied, 462 Md. 93 (2018), cert. denied, 587 U.S. __ , 139 S. Ct. 2027 (2019). “We defer to the factual findings of the postconviction court unless clearly erroneous, but we review its ultimate legal conclusions without deference, re-weighing the facts in light of the law to determine whether a constitutional violation has occurred.” Id. at 360 (citation and quotation omitted) (cleaned up).

Legal Standards Governing Ineffective Assistance Claims “The right to the effective assistance of trial counsel is grounded in the Sixth Amendment, made applicable to the States through the Fourteenth Amendment.” Id. (citing Strickland v. Washington, 466 U.S. 668, 685-86 (1984)). An ineffective assistance claim consists of two elements: deficient performance and prejudice. Newton, 455 Md. at 6 355 (citing Strickland, 466 U.S. at 687 ).

A postconviction petitioner bears the burden of proof. Strickland, 466 U.S. at 687 . To establish deficient performance, the petitioner must show “that counsel’s performance was objectively unreasonable ‘under prevailing professional norms.’” Thaniel, 238 Md. App. at 360 (quoting Strickland, 466 U.S. at 688 ). Because our “scrutiny of counsel’s performance must be highly deferential,” Strickland, 466 U.S. at 689 , we indulge a “strong presumption” that counsel “rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 689-90 .

We “judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.” Id. at 690 . “It is the petitioner’s burden to ‘identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment,’ whereupon a reviewing court ‘must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.’” Thaniel, 238 Md. App. at 360 (quoting Strickland, 466 U.S. at 690 ). “An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Strickland, 466 U.S. at 691 . To establish prejudice, the petitioner must demonstrate “a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’” Id. at 694 . A “reasonable probability” is “a probability sufficient to undermine confidence in the outcome.” Id. at 693 . That standard is less demanding than proof by a preponderance of the evidence but requires more than 7 merely showing “that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693-94 . “Even when no single aspect of the representation falls below the minimum standards required under the Sixth Amendment, the cumulative effect of counsel’s entire performance may still result in a denial of effective assistance.” Cirincione v. State, 119 Md. App. 471, 506 , cert. denied, 350 Md. 275 (1998). “Apparently, this cumulative effect may be applied to either prong of the Strickland test.” Id.

Thus, “numerous non-deficient errors may cumulatively amount to a deficiency,” id. (citing Bowers v. State, 320 Md. 416, 436 (1990)), or “numerous non-prejudicial deficiencies may cumulatively cause prejudice.” Id. (citing Harris v. Wood, 64 F.3d 1432 , 1438-39 (9th Cir. 1995)). Analysis Failure to Object to Erroneous Jury Instruction Wallace’s first claim of ineffective assistance is based upon trial counsel’s failure to object to the trial court’s instruction on attempted murder in the second degree: The Defendant is also charged with the crime of attempted second-degree murder.

A second-degree murder is the killing of another person, is the attempted killing -- excuse me -- of another person with either the intent to kill or the intent to inflict such serious bodily harm that death would be the likely result. Second-degree murder does not require premeditation or deliberation. In order to convict the Defendant of attempted second-degree murder, the State must prove that, by his conduct, the Defendant attempted to cause the death of Steven Freeman and that the Defendant engaged in the deadly conduct either with the intent to kill or with the intent to inflict such serious bodily harm that death would be the likely result. 8 (Emphasis added.) The State correctly conceded, at the postconviction hearing, that the instruction was erroneous. To prove attempted murder in the second degree, the State must show that the defendant acted with the specific intent to murder, not merely the intent to cause such serious bodily harm that death would be the likely result.

State v. Earp, 319 Md. 156, 163 (1990). See Maryland State Bar Ass’n, Maryland Pattern Criminal Jury Instruction (“MPJI-Cr”) 4:17.13(B) (Md. State Bar Ass’n, 2d ed. 2012). In effect, the trial court erroneously conflated the intent element of consummated second-degree murder and that for the attempted crime. Moreover, the State does not contest the postconviction court’s ruling that trial counsel acted deficiently in failing to object to this erroneous instruction and that Wallace suffered prejudice as a result.6 The only disagreement between the parties regarding this claim is the remedy to which Wallace is entitled.

As the State points out, a reviewing court assessing the effect of an instructional error on a verdict comprising multiple convictions must consider each conviction separately; and, whenever the error has no influence on a conviction, that 6 As noted previously, Wallace also was charged with attempted first-degree murder but was acquitted of that charge. Given that acquittal, we accept the State’s concession that Wallace suffered prejudice as a result of trial counsel’s failure to object to the erroneous attempted second-degree murder instruction. We see no reason to disturb the postconviction court’s conclusion that Wallace established a reasonable probability that, but for trial counsel’s failure to object to the erroneous instruction, the jury would have acquitted him of attempted second-degree murder. See Strickland v. Washington, 466 U.S. 668, 695 (1984) (observing that when “a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt”). 9 conviction stands.

See State v. Hawkins, 326 Md. 270, 291 (1992) (observing that “where there are multiple offenses involved, . . . the remedy for an error in the instructions on one of the offenses depends upon the degree to which the erroneous instruction taints each individual conviction”). Compare Hallowell v. State, 235 Md. App. 484, 507-10 (2018) (vacating conviction of use of a firearm in the commission of a crime of violence because instructional error required vacatur of the predicate violent crime conviction), with Nottingham v. State, 227 Md. App. 592, 612 (2016) (affirming conviction of misdemeanor manslaughter because the jury had found the defendant guilty of three separate predicate offenses, and only one of the predicate convictions was affected by the instructional error). Surely, a postconviction petitioner, raising an ineffective assistance claim based upon an unpreserved claim of instructional error, is not entitled to a greater remedy than an appellant raising a claim of instructional error on direct appeal, whether preserved or not.7 In addition to attempted second-degree murder, Wallace was convicted of first- and second-degree assault, use of a handgun in the commission of a crime of violence, possession of a regulated firearm after previously having been convicted of a disqualifying 7 Neither Hawkins nor its progeny discusses the degree of linkage between a conviction, directly affected by an instructional error, and other convictions, that is required so that an appellate court must vacate the other convictions. Hawkins suggests how we should proceed.

Since we must determine “the degree to which the erroneous instruction taints each individual conviction,” 326 Md. at 291 , then, presumably, depending upon whether the claim is preserved, we would apply either the Dorsey harmless error standard or the plain error standard, if the claim arises on direct appeal. By analogy, in a postconviction case such as this, we must determine, for each conviction, whether there is a reasonable probability that, but for trial counsel’s failure to object to the erroneous instruction, the jury would have found reasonable doubt. 10 crime, and reckless endangerment. The erroneous jury instruction, to which trial counsel had failed to object, permitted a conviction upon a lesser proof of the specific intent to commit attempted second-degree murder. That error obviously had no effect whatsoever on the convictions of possession of a regulated firearm after previously having been convicted of a disqualifying crime and reckless endangerment.

The only convictions that conceivably could have been tainted by the erroneous instruction for attempted second-degree murder are the convictions of first- and second-degree assault and use of a handgun in the commission of a crime of violence. We begin with the assault convictions. The first- and second-degree assaults were based upon the same act (shooting the victim) and, under the circumstances of this case, were lesser included offenses of attempted second-degree murder. The only theory of second-degree assault presented to the jury was battery.

That variety of second-degree assault requires the State to prove that the defendant caused offensive physical contact or physical harm to the victim, that the contact resulted from the defendant’s intentional or reckless act and was not accidental, and that the victim did not consent to the contact. MPJI-Cr 4:01. It is clear that the jury’s finding that Wallace had, at least, the intent to inflict such grievous bodily harm that death would be the likely result was more than enough to prove that it found the intent to commit battery, whether of the intentional or unintentional variety. See Lamb v. State, 93 Md. App. 422, 445-55 (1992) (describing the distinction between intentional battery and unintentional battery), cert. denied, 329 Md. 110 (1993). 11 As for first-degree assault, at all times relevant to this proceeding, that offense could be committed in two ways—by committing a second-degree assault and, in addition, either of two aggravators: intentionally causing or attempting to cause “serious physical injury” to another; or committing an assault “with a firearm.” Md. Code (2002), Criminal Law Article (“CR”), § 3-202(a)(1), (2).8 In Thornton v. State, 397 Md. 704, 728-30 (2007), the Court of Appeals examined the relationship between the specific intent required for second-degree murder based upon the intent to inflict grievous bodily harm and the specific intent required for first-degree assault based upon the intent to cause serious physical injury.

It held that the specific intent required to prove first-degree assault based upon the intent to cause serious physical injury was always established by proof of the specific intent required for second-degree murder based upon the intent to inflict grievous bodily harm, but not vice versa. Id. at 728-30 . Under the facts of this case, the jury could have found either or both modes of first-degree assault. To the extent it may have found that Wallace committed first-degree assault based upon the intent to cause serious physical injury, the jury’s finding that Wallace had, at least, the intent to inflict such serious bodily harm that death would be the likely result was more than enough to prove that it found the intent necessary to establish this type of first-degree assault.

Further, to the extent it may have found that Wallace 8 Effective October 1, 2020, an amendment to the first-degree assault statute will become effective, which adds a third means of committing a first-degree assault: “by intentionally strangling another.” 2020 Md. Laws, chs. 119, 120. All statutory references are to the version in effect at the time of the offenses. 12 committed first-degree assault with a firearm, it goes without saying that the jury’s finding that Wallace had, at least, the intent to inflict such serious bodily harm that death would be the likely result was more than enough to prove that it found the intent necessary to establish this mode of first-degree assault as well.9 Turning to use of a handgun in the commission of a crime of violence, we observe that there were three predicate convictions in this case: attempted second-degree murder, first-degree assault, and second-degree assault. Md. Code (2003), Public Safety Article (“PS”), § 5-101(c)(3), (11)