Wallace v. State

Charles Edward Wallace v. State of Maryland, No. 46, September Term, 2020. Opinion by Hotten, J. CRIMINAL LAW – INEFFECTIVE ASSISTANCE OF COUNSEL. Ineffective assistance of counsel only warranted reversal of the conviction that was prejudiced by the deficient performance of counsel under Strickland v. Washington, 466 U.S. 668, 685 , 104 S. Ct. 2052, 2063 (1984), and its progeny. CRIMINAL LAW – INEFFECTIVE ASSISTANCE OF COUNSEL – CUMULATIVE EFFECT THEORY.

The cumulative effect theory discussed in Bowers v. State, 320 Md. 416 , 578 A.2d 734 (1990), that numerous deficiencies of trial counsel can, in the aggregate, amount to ineffective assistance of counsel, has an exceedingly narrow application and did not warrant a new trial. Circuit Court for Anne Arundel County Case No. 02-K-10-002013 Argued: April 9, 2021 IN THE COURT OF APPEALS OF MARYLAND No. 46 September Term, 2020 __________________________________ CHARLES EDWARD WALLACE v. STATE OF MARYLAND __________________________________ Barbera, C.J., McDonald, Watts, Hotten, Getty, Booth, Biran, JJ. __________________________________ Opinion by Hotten, J. __________________________________ Filed: August 16, 2021 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2021-08-16 11:09-04:00 Suzanne C. Johnson, Clerk An altercation between Petitioner, Charles Wallace (“Wallace”), and a person waiting to purchase drugs from someone else, ended when the would-be purchaser was shot in the arm and chest. Wallace was subsequently arrested and later convicted, by a jury sitting in the Circuit Court for Anne Arundel County, 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. At trial, Wallace raised a defense of mistaken identity, claiming that he was not the shooter.

The court imposed a thirty-year sentence for the attempted second-degree murder count, a consecutive twenty-year sentence for use of a handgun in the commission of a crime of violence (the first five years without the possibility of parole), a concurrent five-year sentence for possession of a firearm after being convicted of a crime of violence (without the possibility of parole), and merged the remaining convictions for purposes of sentencing. Wallace appealed his convictions to the Court of Special Appeals, which affirmed in an unreported opinion. Wallace v. State, No. 557, Sept. Term, 2012 (Md. Ct. Spec. App. July 11, 2013).

In 2018, Wallace petitioned for post-conviction relief, asserting ineffective assistance of counsel based on: failing to object to an erroneous jury instruction; conceding the admissibility of other crimes evidence; and failing to object to the circuit court’s prejudicial instructions to the jury regarding the firearm offense. The State conceded that Wallace merited a new trial for trial counsel’s error regarding the erroneous jury instruction, but argued that the remaining convictions should be upheld because the other alleged errors did not qualify as ineffective assistance. Following a hearing, the post- conviction court granted Wallace’s petition and awarded a new trial on all counts, in part due to the cumulative effect of trial counsel’s errors which constituted ineffective assistance. The State appealed to the Court of Special Appeals, which reversed the post- conviction court’s order and remanded for a new trial solely on the attempted second- degree murder charge.

The intermediate appellate court determined that the erroneous jury instruction did not taint the jury’s findings on the other convictions; the circuit court had not erred in admitting the other crimes evidence; the circuit court’s prejudicial instructions to the jury regarding the firearm charge, and defense counsel’s lack of objection, did not taint the verdict; and the limited cumulative effect theory did not warrant a reversal of all the convictions. Thereafter, Wallace appealed to this Court, and we granted certiorari, Wallace v. State, 471 Md. 520 , 242 A.3d 1117 (2020), to address the following questions presented: 1. When reviewing whether trial counsel rendered ineffective assistance of counsel, is it proper for a reviewing court to evaluate prejudice by determining whether deficient performance would have been ameliorated had the error been brought to the [circuit] court’s attention? 2. Did [the Court of Special Appeals] err in advising post-conviction courts that the cumulative effect theory—i.e., the theory that prejudice under Strickland v. Washington, 466 U.S. 668 [, 104 S. Ct. 2052 (1984),] may be found by considering the collective impact of multiple instances of deficient performance—has “exceedingly narrow” application? 3.

Did [the Court of Special Appeals] err in holding that defense counsel’s failure to object to an erroneous instruction on attempted second-degree murder required the reversal of only that conviction, that defense counsel did not prejudice Petitioner when she failed to object to the disclosure to the jury that Petitioner had previously been convicted of a crime of violence, and/or that trial counsel’s failure to object to alleged bad- 2 acts/other-crimes evidence constituted neither deficient performance nor conduct prejudicing Petitioner? For the reasons expressed below, we shall affirm the judgment of the Court of Special Appeals. FACTUAL & PROCEDURAL BACKGROUND On September 25, 2010, Steven Freeman purchased narcotics on three separate occasions in Annapolis. At approximately five o’clock in the morning, while waiting for a prearranged seller to arrive for his third purchase, Freeman noticed Wallace approaching.

Freeman had known Wallace for about a decade, as Wallace had previously attempted to sell him drugs multiple times. The relationship between Wallace and Freeman was acrimonious, and nearly seven years before this incident, Wallace had slashed Freeman’s tire after Freeman refused to purchase drugs from him. Freeman, who has struggled with substance abuse for nearly fifteen years, believed that Wallace sold fake drugs. Wallace, accompanied by another individual, approached Freeman’s vehicle and inquired whether Freeman “needed something.” Freeman informed Wallace that he had already planned on meeting someone else and was not interested in purchasing fake drugs from Wallace.

Wallace became argumentative and aggressive. According to Freeman, Wallace pulled out a firearm as he began walking away, turned back to Freeman and said “well, take this, then,” before he shot Freeman once in the arm. As Freeman began driving 3 away, Wallace shot him a second time in the chest. Freeman thereafter contacted OnStar,1 and stated that “[J]unior”—the name that Freeman knew Wallace by—had shot him.

Conviction and First Appeal Wallace was arrested and subsequently indicted in the Circuit Court for Anne Arundel County on ten counts: 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. State v. Wallace, 247 Md. App. 349, 353 , 236 A.3d 735, 737 (2020). At trial, the State introduced into evidence a shirt worn by Wallace on the night of the shooting which, according to the State’s forensic expert, contained traces of gunshot residue. Id. at 356 , 236 A.3d at 739 .

The jury also considered testimony from the crime lab technician who responded to the scene, other forensic experts and witnesses, Wallace’s father and girlfriend, and Freeman. Wallace motioned for judgment of acquittal on the concealed weapon charge, which the circuit court granted, and the State nolle prossed the charge of use of a handgun in the 1 “OnStar Corporation is a subsidiary of General Motors that provides subscription- based communications, in-vehicle security, emergency services, hands-free calling, turn- by-turn navigation, and remote diagnostics systems throughout the United States” and other countries. Wikipedia, the Free Encyclopedia, Onstar, https://en.wikipedia.org/wiki/OnStar, archived at https://perma.cc/YW5R-LDHV. 4 commission of a felony. The jury acquitted Wallace of attempted first-degree murder, but convicted him of the remaining offenses.

Thereafter, the court 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. Id. at 353–54, 236 A.3d at 737–38. Wallace appealed his convictions to the Court of Special Appeals, which affirmed in an unreported opinion. Wallace v. State, No. 557, Sept. Term, 2012 (Md. Ct. Spec.

App. July 11, 2013). Post-conviction Proceedings Wallace filed a Petition for Post-Conviction Relief on January 3, 2018, alleging that trial counsel had rendered ineffective assistance in three instances: “(1) failing to object to [his] prior bad acts evidence; (2) failing to take appropriate action to limit the damage caused by the jury learning of the nature of [his] prior convictions; and (3) failing to object to the attempted second-degree murder jury instruction that was given at trial.” As a result, Wallace requested that his convictions be vacated and that a new trial be granted. On January 12, 2018, the State filed an initial answer to the petition, denying the allegations. On July 26, 2018, the State filed a supplemental response to the petition conceding the jury instruction error, but disputing Wallace’s other allegations of ineffective assistance of counsel.

A post-conviction hearing was held on March 6, 2019. On June 12, 2019, the post- conviction court granted Wallace’s petition, and later issued an accompanying 5 memorandum opinion, reflecting that trial counsel’s failure to object to the erroneous jury instruction on the attempted second-degree murder charge was deficient, and resulted in prejudice to Wallace’s defense. The court found that trial counsel’s failure to object to the admission of the slashed tire incident as prior bad acts evidence constituted a permissible trial strategy and was not deficient. Additionally, the court determined that trial counsel’s failure to object to the admission of Wallace’s prior conviction for a crime of violence was deficient.

Finally, the court found that “[t]he combination of the three allegations described above, the deficient jury instruction[], the failure to object to prior bad acts evidence, and the failure to object to the prior crime of violence language amounts to deficient performance by trial counsel and that this deficient performance prejudiced [Wallace’s] case.” In granting Wallace a new trial, the post-conviction court was “convinced that the cumulative effect of all three errors clearly resulted in denial of effective assistance of counsel. All three errors, together, demonstrate that but for counsel’s errors, the result of the trial might have been different.” The State filed a motion for reconsideration, arguing that Wallace was only entitled to a new trial for the erroneous jury instruction on the attempted second-degree murder charge. On June 21, 2019, the post-conviction court issued an order denying the State’s motion to reconsider. The order also directed that the court’s memorandum opinion “shall be clarified to reflect the [c]ourt’s finding[s] that trial counsel’s failure to object to the prior bad acts evidence was an error and amounts to deficient performance; . . . there is reasonable probability that, but for trial counsel’s errors, the result of the proceeding would 6 have been different; and . . . that the cumulative effect of trial counsel’s errors clearly resulted in denial of effective assistance of counsel[.]” Court of Special Appeals The State filed an application for leave to appeal to the Court of Special Appeals, which was granted.

The State argued that the post-conviction court erred in granting a new trial on all counts. The State contended that Wallace should receive a new trial solely for the attempted second-degree murder conviction. The Court of Special Appeals “vacat[ed] the post-conviction court’s order and remand[ed] with instructions to vacate the attempted second-degree murder conviction but otherwise deny the post-conviction petition.” Wallace, 247 Md. App. at 355 , 236 A.3d at 738 . The Court examined trial counsel’s failure to object to the erroneous jury instruction and “conclude[d] that the appropriate remedy . . . is vacatur of the conviction of attempted murder in the second degree, the only conviction affected by trial counsel’s failure to object to the erroneous jury instruction.” Id. at 365 , 236 A.3d at 744 (footnote omitted).

Regarding trial counsel’s concession concerning the admissibility of other bad acts evidence, the Court did not hold that the performance was deficient, “[b]ut even if admissibility of this testimony was a close call, we still cannot say that trial counsel’s concession to its admissibility was objectively unreasonable.” Id. at 370 , 236 A.3d at 747 . Next, the Court considered trial counsel’s failure to object to the circuit court’s instructions to the jury regarding Wallace’s prior conviction for a crime of violence. It determined that, although the failure to object constituted deficient performance, Wallace was not prejudiced by the instruction, because the circuit court could have rectified the 7 instruction had an objection been made. Id. at 374 , 236 A.3d at 749 .

Finally, the Court determined that the cumulative effect doctrine,2 articulated in Bowers v. State, 320 Md. 416 , 578 A.2d 734 (1990), has an “exceedingly narrow application” and would not apply. Id. at 375–76, 236 A.3d at 750 . Thereafter, Wallace timely appealed to this Court, and we granted certiorari. Wallace, 471 Md. at 520, 242 A.3d at 1117.

DISCUSSION Standard of Review This Court reviews “a post-conviction court’s findings regarding ineffective assistance of counsel [a]s a mixed question of law and fact. The factual findings of the post-conviction court are reviewed for clear error. The legal conclusions, however, are reviewed de novo.” State v. Syed, 463 Md. 60, 73 , 204 A.3d 139, 146 (2019), reconsideration denied (Apr. 19, 2019), cert. denied, 140 S. Ct. 562 (2019) (internal citations omitted); Newton v. State, 455 Md. 341 , 351–52, 168 A.3d 1, 7 (2017) (“Because we are not finders of fact, we defer to the factual findings of the post-conviction court unless clearly erroneous. But we review the court’s legal conclusion regarding whether the defendant’s Sixth Amendment rights were violated without deference.”) (citing Harris v. State, 303 Md. 685, 698 , 496 A.2d 1074 (1985)).

As part of our review, we “exercise[] [our] own independent analysis as to the reasonableness, and prejudice therein, of counsel’s conduct.” Syed, 463 Md. at 73 , 204 A.3d at 146 (citing Oken v. State, 343 Md. 256, 285 , 2 As applied in Bowers, 320 Md. at 416 , 578 A.2d at 734 , numerous deficiencies of trial counsel can, in the aggregate, amount to ineffective assistance of counsel. The cumulative effect theory is discussed thoroughly below. 8 681 A.2d 30, 44 (1996)) (internal quotation marks omitted); Newton, 455 Md. at 352 , 168 A.3d at 7 (“We ‘re-weigh’ the facts in light of the law to determine whether a constitutional violation has occurred.”) (citation omitted). Ineffective Assistance of Counsel “The Sixth Amendment to the U.S. Constitution grants criminal defendants a right to effective assistance of counsel.” Newton, 455 Md. at 355 , 168 A.3d at 9 (citing Strickland, 466 U.S. at 685 , 104 S. Ct. at 2063 ). In Strickland, the Supreme Court explained that: The right to counsel plays a crucial role in the adversarial system embodied in the Sixth Amendment, since access to counsel’s skill and knowledge is necessary to accord defendants the ample opportunity to meet the case of the prosecution to which they are entitled. . . .

That a person who happens to be a lawyer is present at trial alongside the accused, however, is not enough to satisfy the constitutional command. The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel’s playing a role that is critical to the ability of the adversarial system to produce just results. An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair. 466 U.S. at 685 , 104 S. Ct. at 2063 (citations and internal quotation marks omitted). To prevail on a claim of ineffective assistance of counsel, a defendant has the burden to “show that his or her counsel performed deficiently[]” and “that he or she has suffered prejudice because of the deficient performance.” Syed, 463 Md. at 75 , 204 A.3d at 147 (citations omitted); Newton, 455 Md. at 355 , 168 A.3d at 9 (citation omitted) (“Under Strickland, to establish ineffective assistance of counsel, a defendant must show that: (1) his attorney’s performance was deficient; and (2) he was prejudiced as a result.”). 9 “[W]e need not approach the inquiry in any particular order, nor are we required in every instance to address both components of the Strickland test.” Oken, 343 Md. at 284 , 681 A.2d at 44 ; see also Strickland, 466 U.S. at 697 , 104 S. Ct. at 2069 (“[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.”); Newton, 455 Md. at 356 , 168 A.3d at 9 (“Strickland also instructs that courts need not consider the performance prong and the prejudice prong in order, nor do they need to address both prongs in every case.”) (citation omitted). “The object of an ineffectiveness claim is not to grade counsel’s performance. . . .

Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result.” Strickland, 466 U.S. at 697 , 104 S. Ct. at 2069 . “The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 686 , 104 S. Ct. at 2064 . In the absence of a showing of deficient performance and the resulting prejudice, “it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable.” Syed, 463 Md. at 75 , 204 A.3d at 147 (citation omitted). To ascertain whether trial counsel’s performance was “deficient,” a “defendant must show that the attorney’s performance was objectively unreasonable under prevailing professional norms.” Bailey v. State, 464 Md. 685, 703 , 212 A.3d 912, 922 (2019) (quotation marks and citation omitted); see also In re Parris W., 363 Md. 717, 725 , 770 A.2d 202 , 206–07 (2001) (“To prove deficient performance, the defendant must identify 10 acts or omissions of counsel that were not the result of reasonable professional judgment. The standard by which counsel’s performance is assessed is an objective one, and the assessment is made by comparison to prevailing professional norms.”) (citations omitted). “Judicial scrutiny of counsel’s performance is highly deferential, and there is a strong (but rebuttable) presumption that counsel rendered reasonable assistance and made all significant decisions in the exercise of reasonable professional judgment.” In re Parris W., 363 Md. at 725 , 770 A.2d at 207 . “[A] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Newton, 455 Md. at 355 , 168 A.3d at 9 (citation omitted).

We also consider whether trial counsel’s actions or inactions were reasonably “pursued as a form of trial strategy.” Coleman v. State, 434 Md. 320, 331 , 75 A.3d 916, 922 (2013) (citation and quotation marks omitted); Walker v. State, 391 Md. 233, 260 , 892 A.2d 547, 562 (2006) (“Strategic decisions must nonetheless be supported by reasonable professional judgment.”). “A strategic trial decision is one that is founded upon adequate investigation and preparation.” Syed, 463 Md. at 75 , 204 A.3d at 148 (citation and quotation marks omitted). Not every instance of deficient conduct by trial counsel is prejudicial. Syed, 463 Md. at 87 , 204 A.3d at 154–55. As Justice Kennedy succinctly noted, “a defendant has a right to effective representation, not a right to an attorney who performs his duties mistake free. . . .

That said, the concept of prejudice is defined in different ways depending on the 11 context in which it appears.” Weaver v. Massachusetts, ___ U.S. ___, ___, 137 S. Ct. 1899 , 1910–11 (2017). To determine whether trial counsel’s conduct “prejudiced” a defendant, we must be convinced that there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different[] or . . . that the result of the proceeding was fundamentally unfair or unreliable.” Newton, 455 Md. at 355 , 168 A.3d at 9 (citation omitted). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 669 , 104 S. Ct. at 2056 . We have “further interpreted the ‘reasonable probability’ standard to mean that there existed ‘a substantial or significant possibility that the verdict of the trier of fact would have been affected[.]’” Syed, 463 Md. at 137 , 204 A.3d at 184 (Hotten, J., concurring and dissenting) (citing Bowers, 320 Md. at 426 , 578 A.2d at 739 ); Syed, 463 Md. at 87–88, 204 A.3d at 155 (Maj. Op.) (citation and markings omitted) (“the likelihood of a different result must be substantial, not just conceivable.”).

To do so, we “must consider the totality of the evidence before the judge or jury.” Strickland, 466 U.S. at 669 , 104 S. Ct. at 2056 . Trial Counsel’s Performance at Issue With these principles in mind, we review Wallace’s claims of ineffective assistance of counsel. Wallace alleged that his trial counsel rendered ineffective assistance in three instances: “failing to object to the attempted second-degree murder jury instruction that was given at trial[;] failing to take appropriate action to limit the damage caused by the jury learning of the nature of [his] prior convictions; [and] failing to object to [his] prior bad acts evidence[.]” We address each one in turn. 12 Attempted second-degree murder instruction. Wallace was charged with attempted second-degree murder.

To prove attempted murder in the second degree, “the State must show a specific intent to kill—an intent to commit grievous bodily harm will not suffice.” State v. Earp, 319 Md. 156, 164 , 571 A.2d 1227, 1231 (1990); Alston v. State, 414 Md. 92, 118 , 994 A.2d 896, 911 (2010) (“we reject the defendant[’s] argument that the jury, if properly instructed, could have found [him] guilty of a conspiracy to commit second[-]degree murder of the type based on an intent to inflict grievous bodily harm. There is no such offense under Maryland law.”) (emphasis added). The “intent to kill” requirement for attempted second-degree murder was also reflected in the pattern jury instructions at the time: In order to convict the defendant of attempted murder in the second degree, the State must prove: (1) that the defendant took a substantial step, beyond mere preparation, toward the commission of murder in the second degree; (2) that the defendant had the apparent ability, at that time, to commit the crime of murder in the second degree; and (3) that the defendant actually intended to kill (name). MPJI-Cr 4:17.13(B) (2d ed. 2012).3 3 “[A] specific intent to kill is an indispensable element of the crime of attempted murder, in either degree.” State v. Selby, 319 Md. 174, 178 , 571 A.2d 1236, 1238 (1990) (emphasis added) (referencing Earp, 319 Md. at 164 , 571 A.2d at 1231 ).

By contrast, in a case of a completed second-degree murder, i.e. the victim died as a result of the defendant’s actions, “the trier of fact may find the requisite intent for second-degree murder, even where the defendant did not intend to kill the victim, but did intend to inflict grievous bodily harm.” Thornton, 397 Md. at 733, 919 A.2d at 694–95 (footnote omitted); Davis v. State, 237 Md. 97, 104 , 205 A.2d 254, 258 (1964) overruled on other grounds as recognized in Thornton v. State, 397 Md. 704 , 919 A.2d 678 (2007) (“An actual intent to take life is not necessary for a conviction of murder if the intent is to commit grievous bodily harm and death occurred in consequence of the attack.”); see also Maryland State Bar Standing Committee on Pattern Jury Instruction (“MPJI-Cr”) 4:17.6(C) (a jury may (continued . . .) 13 The circuit court gave the following instruction regarding Wallace’s attempted second-degree murder charge: 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 [] 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.

(Emphasis added).4 This instruction was erroneous, because it allowed the jury to convict Wallace of attempted second-degree murder without a finding of the requisite level of intent. “[A] specific intent to kill is an indispensable element of the crime of attempted murder, in either degree.” State v. Selby, 319 Md. 174, 178 , 571 A.2d 1236, 1238 (1990) (emphasis added) (referencing Earp, 319 Md. at 164 , 571 A.2d at 1231 ). “[A]n intent to commit grievous bodily harm will not suffice.” Earp, 319 Md. at 164 , 571 A.2d at 1231 . By allowing the jury to convict with a finding of intent to inflict serious bodily harm and without a finding (. . . continued) find a defendant guilty of a completed second-degree murder if the state proves that “the defendant caused the death of [the victim]; 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.”). 4 As noted previously, Wallace was also charged with attempted first-degree murder. The circuit court correctly instructed the jury on the attempted first-degree murder charge, and the jury acquitted Wallace on that charge. 14 of intent to kill, the jury instruction was flawed. Defense counsel did not object to the erroneous instruction.

As the State concedes, counsel’s failure to object constituted deficient performance. The failure to object resulted in the conviction of attempted second-degree murder on a lower threshold of intent. Allowing the jury to reach a guilty verdict with a less demanding finding of intent—i.e. a finding of intent to inflict serious bodily harm as opposed to a finding of an intent to kill—“was objectively unreasonable under prevailing professional norms.” Bailey, 464 Md. at 703 , 212 A.3d at 922 ; see, e.g., Unger v. State, 427 Md. 383, 417 , 48 A.3d 242, 262 (2012) (concluding that the post-conviction court correctly granted a new trial following trial counsel’s failure to object to jury instructions that “were clearly in error”). The failure to object was not reasonably “pursued as a form of trial strategy.” Coleman, 434 Md. at 331 , 75 A.3d at 922 . “Strategic decisions must nonetheless be supported by reasonable professional judgment.” Walker, 391 Md. at 260 , 892 A.2d at 562 .

For a defense attorney to make it easier for the jury to convict is not a decision that is normally “supported by reasonable professional judgment.” Id., 892 A.2d at 562 . The prejudicial impact of the failure to object is disputed. Wallace argues that since all of the charges stem from the same action—i.e. the purported shooting of Freeman—the taint of counsel’s error “likely influenced the jury” as to the remaining charges, thereby extending to all of Wallace’s convictions. The State counters, as the Court of Special Appeals reasoned, that the spillover effect of counsel’s failure to object did not extend beyond the attempted second-degree murder conviction.

We agree. 15 To measure the prejudicial impact of counsel’s error, we “must consider the totality of the evidence before the judge or jury,” to determine whether there is “a substantial or significant possibility that the verdict of the trier of fact would have been affected.” Syed, 463 Md. at 86–87, 204 A.3d at 154 (citations omitted). When reviewing an error in a case with “multiple offenses involved,” this Court has stated that “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.” State v. Hawkins, 326 Md. 270, 291 , 604 A.2d 489, 500 (1992) (citations omitted). In Hawkins, there was no error regarding a felony murder instruction, but there was an erroneous instruction regarding a conviction for accessory after the fact. Id. at 290 , 604 A.2d at 500 .

In that case, this Court explained: The decisive factor, however, is that the prejudice [of the erroneous instruction] devolved only on the verdict of guilty of the crime of accessory after the fact. The prejudice did not reach the murder verdict; that verdict was proper in all respects and remained unsullied. All things considered, we do not believe that the defective instruction influenced the jury one whit in its decision that Hawkins was guilty of felony murder. *** Inasmuch as the defective instruction despoiled only the accessory after the fact verdict and left the murder verdict chaste and pure, there is no good cause to wash out the judgment entered on the murder conviction. It is only the judgment entered on the accessory after the fact conviction which must be vacated.

Id. at 290–91, 604 A.2d at 499–500. There is a “substantial or significant possibility” that Wallace’s conviction for attempted second-degree murder was affected by counsel’s failure to object to the erroneous instruction. The jury instruction on the attempted second-degree murder charge erroneously added an intent factor—“intent to inflict such serious bodily harm that death 16 would be the likely result”—that permitted the jury to convict Wallace upon a lesser finding of culpability than required. Lowering