Whitney v. State

SHARER, Judge. In this direct appeal we must determine whether reversal of appellant’s convictions is required because his right to the full complement of peremptory strikes was impaired as a result of the ineffective assistance of his trial counsel. Appellant, Shawn M. Whitney, was convicted of conspiracy to distribute cocaine and possession of cocaine, by a jury in the Circuit Court for Baltimore City. 1 In his timely appeal, Whitney raises for our review two issues which, as reordered and recast, are: 1. Whether the trial court erred in denying appellant’s motion for a new trial based upon trial counsel’s ineffective assistance in the jury selection process; 2.

Whether his convictions are precluded as a matter of law by the trial court’s entry of a judgment of acquittal on the related charge of attempted distribution of cocaine. We shall hold that the impairment of a defendant’s peremptory challenges is not a structural defect or error such as will ⁵²⁴ relieve a defendant of the burden of establishing prejudice under these circumstances. Therefore, we conclude that the trial court did not abuse its discretion in denying appellant’s motion for a new trial. We hold that his challenges to the convictions are otherwise not preserved, and shall affirm the judgments of the circuit court.

BACKGROUND Because our decision does not implicate the evidence adduced at trial, we need not recite the facts, other than to provide context for the discussion of the issues presented. Craig v. State, 148 Md.App. 670 , 674 n. 1, 814 A.2d 41 (2002), cert. denied, 374 Md. 83 , 821 A.2d 370 (2003). See Vaccaro v. Caple, 33 Md.App. 413, 414 , 365 A.2d 47 (1976). On November 17, 2002, police officers witnessed appellant engaging in what they determined was a narcotics sale.

Appellant was seen to accept currency from persons who then would take objects from a companion, one Anthony Johnson. When police moved in on the scene, Johnson tried to flee, dropping a bag that contained cocaine. Appellant was apprehended, and found to possess $249 in currency. He was charged with attempted distribution of cocaine, conspiracy to distribute cocaine, and possession of cocaine.

Whitney went to trial before a jury in the Circuit Court for Baltimore City. On January 23, 2003, the jury selection process was conducted. After excusing a number of prospective veniremen for cause, the trial judge said to counsel “[y]ou each get four strikes and I’m not going to have an alternate.” The defense exercised its four challenges, and the panel was selected and seated. After the close of the State’s case, the trial court entered a judgment of acquittal on the attempted distribution count.

The jury convicted Whitney on the remaining charges. On January 28, Whitney, by his trial counsel, moved for a new trial. She averred: That pursuant to Rule 4-313(a)(3) and due to Counsel’s naivete (counsel’s 2nd jury trial), Movant was entitled to 10 ⁵²⁵ peremptory strikes not 4 and as a result Movant was denied the privilege to reject jurors. The number of peremptory challenges are mandatory and not discretionary.

At the scheduled sentencing hearing on February 20, 2003, defense counsel reminded the court of the pending new trial motion. Counsel reiterated her ignorance at the time of trial of Whitney’s right to ten peremptory strikes. After some discussion, the trial judge requested that counsel research the issue, and continued the motion hearing and sentencing until February 28. At the reconvened hearing on that date, the trial court summarized the issue: [CJounsel for the defendant stood and said that, at the time of trial, she wasn’t aware that he was entitled to ten jury strikes and she thought he was entitled to four jury strikes, and, of course, there was no complaint at that time.

She did take four strikes. I personally asked whether or not both sides were satisfied with the jury at the end of all the strikes. Nobody asked for any others. Nobody made any challenges.

And, in addition to that, at the time, at the bench, when we were voir diring the jury, at the end of that time I asked if there was any other challenges for cause. Everybody was satisfied with the panel before the strikes were taken and the strikes were taken on an individual call basis in accordance with the rules.... At the end of the selection of the panel that was in the box, both lawyers found the panel acceptable. The State did not take any strikes.

So we have lots of jurors extra. 1 mean, there were more than enough jurors to take strikes. At the hearing, another attorney from the Office of the Public Defender stood in for trial counsel, and unsuccessfully pressed the argument for a new trial. The court explained his denial: Again, in the instant case, the Court asked the defendant prior to the jury being sworn whether he ... was satisfied with the jury and counsel for the defendant stated on the ⁵²⁶ record that the jury is acceptable to the defendant. At no time did counsel for the defendant state that there is a problem with the jury.

Further, the defendant has failed, to show any prejudice that he has suffered due to the makeup of the jury. On the contrary, the facts of the case point out that the jury was a well-balanced jury ... * * * The mere allegation of error without any substance of prejudice is not sufficient to warrant a new trial. Wherefore, the defendant’s motion for a new trial should and is hereby denied. This appeal followed.

DISCUSSION 1. Whether the trial court erred in denying appellant’s motion for a new trial based upon trial counsel’s ineffective assistance in the jury selection process. Procedural Posture Appellant’s appeal on this issue is grounded on trial counsel’s concession of her neglect in failing to apprehend that the defense was entitled to ten peremptory strikes. The State answers that the argument is waived.

The State’s alternative position is that the issue is an assertion of ineffective assistance of counsel, and therefore is a more proper subject for a post conviction proceeding, and thus is not properly cognizable on direct appeal. We disagree with the State that the issue is not properly before us. On this record, we conclude that appellant may seek relief on the basis of the ineffective assistance of trial counsel by way of this direct appeal from the denial of his motion for a new trial. We explain.

Appropriate Forum Counsel did not object at voir dire for the obvious reason that she was unaware that appellant was entitled to ten ⁵²⁷ peremptory strikes. She did file a timely motion for a new trial, an appropriate vehicle for challenging the impairment in the number of Whitney’s peremptory strikes that may have resulted from her ineffectiveness. See Ruth v. State, 133 Md.App. 358, 365-66 , 757 A.2d 152 , cert. denied, 361 Md. 435 , 761 A.2d 933 (2000). The denial of this motion may be reviewed on direct appeal.

Merritt v. State, 367 Md. 17, 28-31 , 785 A.2d 756 (2001). See Jenkins v. State, 375 Md. 284, 295-96 , 825 A.2d 1008 (2003). The more salient question is whether the facts and circumstances warrant our review on direct appeal, rather than through the procedures afforded under the Maryland Uniform Postconviction Act. Maryland Code (2001), Title 7 of the Criminal Procedure Article (the “Act”).

Appellant cites the “admitted ignorance” of trial counsel to justify his argument for a new trial, and further asserts that because the record is fully developed on the issue, we may consider the issue on his direct appeal. We commend trial counsel’s candor in her admission that she was unaware that Whitney was entitled to ten peremptory challenges; and she may take consolation from the trial court’s erroneous advice to counsel that “[y]ou each get four strikes[.]” Nevertheless, she was obligated to correct the trial judge’s misstatement. See Bundy v. State, 334 Md. 131, 139-40 , 638 A.2d 84 (1994) (incumbent upon litigant to object) (quoting Covington v. State, 282 Md. 540, 543 , 386 A.2d 336 (1978)). Cf.

William T. Pizzi and Morris B. Hoffman, Jury Selection Errors on Appeal, 38 Am. Crim. L. Rev. 1391 , 1405 (2001) (competent representation demands that counsel correct trial judge’s errors). We must therefore examine whether this Court is the proper forum for the remedy appellant seeks.

Addressing again the procedural posture of this case, we note that the State urges that a complaint about the performance of trial counsel must be considered in the post conviction forum. In Mosley v. State, 378 Md. 548 , 836 A.2d 678 (2003), the Court of Appeals indeed ruled that the defen ⁵²⁸ dant’s claim of ineffective assistance was moi*e appropriately addressed in a post conviction relief proceeding. The Court emphasized that process afforded by the Act “is the most appropriate way to raise the claim of ineffective assistance of counsel.” Id. at 558-59 , 886 A.2d 678 . The Act provides for a full evidentiary hearing to ventilate the sometimes thorny fact-bound issues of trial strategy or tactics, and resulting prejudice.

As the Mosley Court reminds us: [T]he adversarial process found in a post-conviction proceeding generally is the preferable method in order to evaluate counsel’s performance, as it reveals facts, evidence, and testimony that may be unavailable to an appellate court using only the original trial record. Mosley, supra, 378 Md. at 562 , 836 A.2d 678 . Notwithstanding the general proposition that such claims are best deferred for post conviction, the rule is not absolute, and we are not persuaded by the State that deferral is appropriate in this instance. Indeed, the prudential concern for affording that full inquiry into the conduct of trial counsel is not implicated in the “exceptional case”, where the shortcomings of the defense attorney, and any prejudice, would be obvious from the state of the trial record.

Trial counsel’s refreshing candor has simplified our inquiry. Because “the critical facts [with regard to counsel’s performance] are not in dispute and the record is sufficiently developed to permit a fair evaluation of [the] claim, there is no need for a collateral fact-finding proceeding[.]” In re Parris W., 363 Md. 717, 726 , 770 A.2d 202 (2001). Standard of Review In reviewing a circuit court’s denial of a motion for a new trial, an appellate court’s review may vary, depending on the nature of the trial court’s actions and the circumstances before it. In Jenkins, supra, Judge Cathell surveyed cases from our Court of Appeals to conclude that the denial of a new trial motion would be reviewed for an abuse of discretion. 375 Md. at 295-99 , 825 A.2d 1008 .

He noted, however, instances ⁵²⁹ where some dispositions of a new trial motion require the inquiry into existence of error. Id. at 297 , 825 A.2d 1008 (quoting Merritt, 367 Md. at 30-31 , 785 A.2d 756 ). We are asked, however, to review the trial judge’s disposition of a new trial motion sought on the basis of ineffective assistance of trial counsel. In State v. Jones, 138 Md.App. 178, 209 , 771 A.2d 407 (2001), aff'd, 379 Md. 704 , 843 A.2d 778 (2004), Judge Hollander articulated the appropriate standard of review in such matters: The standard of review of the lower court’s determinations regarding issues of effective assistance of counsel “is a mixed question of law and fact....” ...

We “will not disturb the factual findings of the post-conviction court unless they are clearly erroneous.” ... [T]he appellate court must exercise its own independent judgment as to the reasonableness of counsel’s conduct and the prejudice, if any.... “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.... As a question of whether a constitutional right has been violated, we make our own independent analysis by reviewing the law and applying it to the facts of the case.” Jones, supra, 138 Md.App. at 209 , 771 A.2d 407 (citations omitted). The Merits Both the Sixth Amendment to the United States Constitution, made applicable to the States by the due process clause of the Fourteenth Amendment, and Article 21 of the Maryland Declaration of Rights, guarantee criminal defendants the right to the assistance of counsel at critical stages in the proceedings against them. Strickland v. Washington, 466 U.S. 668, 684-85 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984); Richardson v. State, 381 Md. 348 , 849 A.2d 487 (2004).

The right to counsel entails the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759 , 771 n. 14, 90 S.Ct. 1441 , 25 L.Ed.2d 763 (1970). ⁵³⁰ To challenge an abridgement of that right on the basis of ineffective assistance, Whitney must establish two components: “First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense.

This requires showing that counsel’s errors were so serious as to deprive the defendant of fair trial, a trial whose result is reliable.” Williams v. Taylor, 529 U.S. 362, 390 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000) (quoting Strickland, supra, 466 U.S. at 687 , 104 S.Ct. 2052 ). See Parris W., supra, 363 Md. at 725 , 770 A.2d 202 (citations omitted). A defendant must, in other words, demonstrate that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, supra, 466 U.S. at 694 , 104 S.Ct. 2052 . Further, “absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id., 466 U.S. at 695 , 104 S.Ct. 2052 .

Performance Component We need not dwell on the performance component of the inquiry into the effectiveness of trial counsel. Setting aside the trial court’s explicit, albeit erroneous, allowance of just four peremptory strikes, the conceded negligence of Whitney’s trial counsel, not being aware of the full complement of peremptory strikes to which he was entitled, fell demonstrably below an objective standard of reasonableness. Counsel acknowledged as much. In any event, reviewing counsel’s omission independently, we concur with her self-appraisal.

See generally Green v. United States, 972 F.Supp. 917, 920 (E.D.Pa.1997) (first prong of Strickland met where deficiencies in counsel’s performance so severe as not to be product of strategic judgment) (citations omitted). ⁵³¹ Prejudice Component The inquiry into the alleged prejudicial effect of counsel’s neglect, however, requires additional discussion. “Peremptory challenges are those which are made to the juror, without assigning any reason, which the courts are bound to respect.” Pearson v. State, 15 Md.App. 462, 465 , 291 A.2d 167 (1972) (quoting Turpin v. State, 55 Md. 462, 464 (1881)). According to the Court of Appeals: In insuring that ... an impartial jury is chosen, a reasonable peremptory challenge right plays a vital role because it permits a party to eliminate a prospective juror with personal traits or predilections that, although not challengeable for cause, will, in the opinion of the litigant, decide the case on the basis other than the evidence presented. King v. State Roads Comm’n, 284 Md. 368, 370 , 396 A.2d 267 (1979). Such challenges are afforded by state law, and are not required by the Constitution. 2 Ross v. Oklahoma, 487 U.S. 81, 89 , 108 S.Ct. 2273 , 101 L.Ed.2d 80 (1988).

Nor are they guaranteed by our Declaration of Rights. King, supra, 284 Md. at 370 , 396 A.2d 267 . The “right to challenge peremptorily prospective jurors[ ] ... has been conferred upon an accused and the State by the common law, case law, statute and rule of court.” 3 Pearson, supra, 15 Md.App. at 463 , 291 A.2d ⁵³² 167. The peremptory challenge is “part of our common-law heritage.” United States v. Martinez-Salazar, 528 U.S. 304, 311 , 120 S.Ct. 774 , 145 L.Ed.2d 792 (2000).

See Booze v. State, 347 Md. 51, 58-64 , 698 A.2d 1087 (1997); Spencer v. State, 20 Md.App. 201, 203 , 314 A.2d 727 (1974). “The denial or impairment of the right [to exercise peremptory strikes] is reversible error without a showing of prejudice.” Spencer, supra, 20 Md.App. at 209 , 314 A.2d 727 (quoting Swain v. Alabama, 380 U.S. 202, 219 , 85 S.Ct. 824 , 13 L.Ed.2d 759 (1965), overruled on other grounds by Batson v. Kentucky, 476 U.S. 79, 89 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986)). See also Booze v. State, 111 Md.App. 208, 232 , 681 A.2d 534 (1996), rev’d on other grounds, 347 Md. 51 , 698 A.2d 1087 (1997). In King, supra, Judge Digges observed: [T]he importance of the peremptory challenge requires that any significant deviation from the prescribed procedure that impairs or denies the privilege’s full exercise is error that, unless waived, ordinarily will require reversal without the necessity of showing prejudice. 284 Md. at 371 , 396 A.2d 267 (citing Swain, supra, 380 U.S. at 219 , 85 S.Ct. 824 ). See generally, State v. McLean, 2002 ME 171 , 815 A.2d 799 (Me.2002) (collecting cases).

Although the Supreme Court in Martinez-Salazar has clarified as dictum the statement from Swain that the impairment of a federal defendant’s peremptory challenges dictates reversal per se, we discern no effort by the courts of this State to retreat from the “reversibility per se” rule for the judicial impairment of a party’s allotment of peremptory strikes.' 4 But see Morris v. State, 153 Md.App. 480, 541-42 , 837 A.2d 248 ⁵³³ (2003) (Adkins, J., concurring), cert. denied, 380 Md. 618 , 846 A.2d 402 (2004), wherein Judge Adkins recounted the Supreme Court’s retreat from the dictum in Swain in Martinez-Salazar . 5 In sum, however, we proceed on the view that “(t]he denial or impairment of the right is reversible error without a showing of prejudice.” 6 Vaccaro, supra, 33 Md. App. at 416 , 365 A.2d 47 . We are confident that, had the trial court, over counsel’s objection, abridged Whitney’s right to the full number of peremptory challenges, we would likely reverse and grant a new trial. See, e.g., Herd v. State, 25 Md.App. 284, 288-89 , 333 A.2d 659 ,