Petition for Writ of Certiorari — Antonio McGhee, Petitioner v. Maryland

Supreme Court briefJan 4, 2023

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IN THE

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SUPREME COURT OF THE UNITED STATES

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JAN 0 | 2023

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— PETITIONER

(Your Name)

vs.

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— RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

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(NAME OF COURT mAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

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LIST OF PARTIES

] All parties appear in the caption of the case on the cover page.

[ ] All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

RELATED CASES

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TABLE OF CONTENTS

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

CONCLUSION

2<\

INDEX TO APPENDICES

APPENDIX A

C.0

APPENDIX B P^OA

APPENDIX C CktAS^A

APPENDIX D

APPENDIX E

APPENDIX F

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TABLE OF AUTHORITIES CITED

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IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

[ ] For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix

the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the United States district court appears at Appendix

the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix

__ to the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the

appears at Appendix

C0v»rVo^

tVp?A\s

&__ to the petition and is

[ ] reported at

5 or,

[ ] has been designated for publication but is not yet reported; or,

^1>] is unpublished.

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JURISDICTION

[ ] For cases from federal courts:

The date on which the United States Court of Appeals decided my case

was______________________

[ ] No petition for rehearing was timely filed in my case.

[ ] A timely petition for rehearing was denied by the United States Court of

Appeals on the following date: ____________

, and a copy of the

order denying rehearing appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including______

(date) on

(date)

in Application No.__ A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

*] For cases from state courts:

The date on which the highest state court decided my case was OcA

A copy of that decision appears at Appendix

.cm sMaa

[ ] A timely petition for rehearing was thereafter denied on the following date:

--------------------------------- , and a copy of the order denying rehearing

appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including____

(date) on

(date) in

Application No.__ A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

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After the State’s Application for Leave to Appeal was granted, Mr.

McGhee maintained in the Court of Special Appeals that Charles, Atkins, and

Stabb applied to his case and that in light of those cases, his attorney was

constitutionally ineffective in failing to object to the CSI-effect von dire question.

The Court of Special Appeals disagreed oil both fronts. It rejected Mr. McGhee’s

argument that Charles, Atkins, and Stabb applied to his case, (E.531-532, n.4), and

it held that because Mr. McGhee “presented no evidence establishing that the

prevailing professional norm at the time of his trial was to object to ‘CSI effect’

messages to the venire or jury,” he failed to prove that his counsel’s failure to

object to the question was constitutionally deficient, (E.531). 8

B. Charles, Atkins, and Stabb.

In Charles v. State, two defendants were charged with murder and handgun

offenses. At their trial, the trial court posed the following voir dire question to the

venire: “[I]f you are currently of the opinion or belief that you cannot convict a

defendant without ‘scientific evidence,’ regardless of other evidence in the case

and regardless of the instructions that I will give you as to the law, please rise[.]”

414 Md. at 730. After the defendants were convicted, one of them challenged the

voir dire question on appeal. Id. at 728. This Court framed the issue before it as

“whether the use of the term ‘convict’ in the heart of the inquiry, rendered the

The Court also reversed the post-conviction court’s finding that Mr.

McGhee’s counsel rendered ineffective assistance with respect to the jury

instructions. (E.532-545). That part of the Court of Special Appeals’ ruling is not

before this Court.

question untenable.” Id. at 736. See also id. at 733 (“The issue before us is really

the appropriateness of the language used in the inquiry.”).

In analyzing that issue, the Court relied heavily on State v. Hutchinson, 287

Md. 198 (1980), which involved a jury instruction with “similar language.”

Charles, 414 Md. at 736. Specifically, the instruction in Hutchinson told the jury

it could find the defendant guilty of the charges against him but did not tell the

jury “it could return a ‘not guilty’ verdict.” Id. The Hutchinson Court reversed

the defendant’s convictions, explaining, “‘Tf a defendant is entitled to have a jury

instructed as to all possible verdicts arising from the evidence, it seems manifest to

us that he would have the right to have the jury told that it may find him not guilty.

We can envision no right more fundamental to the defendant in a criminal jury

trial.’” Id. at 737 (quoting Hutchinson, 287 Md. at 205-06). According to the

Charles Court, the Hutchinson Court reversed Hutchinson’s convictions because

“the language of the jury instruction suggested that finding the defendant ‘guilty’

was a foregone conclusion.” Id.

After discussing an out-of-state case that it deemed distinguishable, id. at

737-38, the Charles Court turned its attention to Corens v. State, 185 Md. 561

(1946), a death penalty case in which it had addressed a voir dire question that

asked “whether the prospective jurors were capable of convicting the defendant

based upon circumstantial evidence, rather than direct evidence[.]”

Md. at 738-39.

Charles, 414

As the Charles Court explained, the Corens Court approved of

that question because it “reasoned that just as a prospective juror ‘who has

conscientious scruples against capital punishment’ can be challenged for cause, a

prospective juror who cannot render a death sentence based upon circumstantial

evidence can similarly be challenged for cause.” Id. at 739.

Ultimately, the Court applied Hutchinson and Corens to the voir dire

question before it. It explained that Corens was “inapposite” “because the inquiry

here was not inextricably linked to the facts and circumstances of the case, but

rather, preordained the result.” Id. at 739. And, it concluded that “like the jury

instruction in Hutchinson, the voir dire , question at issue here suggested that the

jury’s only .option was. to convict, regardless of whether scientific evidence was

adduced.” Id. at 737. Accordingly, the Court held that the trial court abused its

discretion in posing the question because, it “poisoned the venire” and “depriv[ed]

Drakeand Charles of a fair and impartial jury.” Mat 739. ,

In Atkins, this Court, considered a CSI-effect jury instruction. Atkins was

charged with, and ultimately .convicted of, three counts of second-degree assault.

421 Md. at 437. At his trial, the State’s witnesses testified that Atkins stabbed one

victim and cut two; other victims with a knife in the course of an altercation. Id. at

438. Several days after the incident, police recovered a knife with a six-inch blade

from Atkins’s bedroom. Id: at 439. Through cross-examination, defense counsel

established that police had not asked for any forensic testing to be performed on

the knife, which was ultimately introduced into evidence on the theory that it was

the knife that was used in the incident. Id. at 439-40.

Atkins took the stand in his own defense.

In contrast to the State’s

witnesses, Atkins testified that he acted in self-defense, and he explained that he

used a pocketknife to swing at the victims. Id. at 439. His counsel thereafter

argued to the jury that the knife the police located was not the knife used in the

incident. Id.

At the end of the case, the court instructed the jury that there was “no legal

requirement that the State utilize any specific investigative technique or scientific

test to prove its case.” Id. at 441-42. Atkins thereafter challenged that instruction

on appeal.

At the outset of its opinion, this Court recognized that a defendant has a

constitutional right to be tried by a fair and impartial jury. Id. at 443. It also

recognized that “it is improper for a trial judge to ‘comment on a question of fact

which the jury is to pass on’ because such commentary invades the province of the

jury,” id. (quoting Gore v. State, 309 Md. 203,213 (1987)), and reminded that “we

preclude any instruction ‘when [it] operate[s], ultimately, to relieve the State of its

burden of persuasion in a criminal case, i.e., its burden of proving beyond a

reasonable doubt all the facts necessary to constitute the offense,’” id. (quoting

State v. Evans, 278 Md. 197, 207 (1976)). Then, the Court acknowledged the

difference between instructions that are given on “the applicable law” and those

that are given on “facts and inferences.” Id. at 445. With respect to the latter, it

reiterated, “As this Court has stated in the past in regard to missing witness

instructions, when the inference is communicated to the jury as part of the judge’s

PG,-

binding jury instructions, it creates the danger that the jury may give the inference

undue weight.”

Id. (quoting Patterson v. State, 356 Md. 677, 684 (1999))

(emphasis by Adkins Court).

Applying those principles to the instruction before it, the Court held the

trial court abused its discretion in giving it and reversed Atkins’s convictions.

First, the Court explained that its “primary concern” was that “the instruction as

worded effectively undermined the defense theory of self defense, and relieved the

State of its burden to prove guilt beyond a reasonable doubt.” Id. at 451. It later

elaborated, “[T]he instruction did not clearly explain to the jury the relation

between the fact that the State was not required to produce specific evidence on

the one hand, with the continuing obligation of the State to prove the defendant’s

guilt beyond a reasonable doubt on the other hand.” Id. at 455.

Then, the Court stated that “[tjhere was an insufficient basis in this case

generating a need for a curative or cautionary jury instruction clarifying the State’s

burden of proof.” Id. The Court explained, citing cases such as Sample v. State,

314 Md. 202 (1988), and Eley v. State, 288 Md. 548 (1980), that “a defendant has

the right to raise a defense based on the lack of evidence presented by the State,”

and recognized that, accordingly, “defense counsel had every right to inquire

about the steps die State undertook to connect the defendant and the particular

knife found in Atkins’s home to the crime.” Id. at 452.

Finally, the Court found that the instruction “invaded the province of the

jury and constituted commentary on the weight of the evidence[.]” Id. at 453. In

its view, “the instruction directed the jury to ignore the fact that the State had not

presented evidence connecting the knife to the crime, implying that the lack of

such evidence is not necessary or relevant to the determination of guilt, and to

disregard any argument by defense to the contrary.” Id. It continued, “It was well

within the province of the jury to infer, or not to infer, as a matter of fact, that the

knife introduced by the State was the knife used to commit the crimes alleged.

Through the instruction, however, the judge commented on that inference, thus

invading the province of the jury.” Id. at 453-54.

'In Stabb, which followed Atkins by three months, this Court again

considered a challenge to a CSI-effect instruction. Stabb was charged with thirddegree sexual assault and second-degree assault in coimection with an incident

involving a child. 423 Md. at 457. The State’s case against Stabb relied primarily

on the testimony of the child and statements she had made to other people. Id: at

457-59. During the cross-examination of a social worker who interviewed the

child, defense counsel elicited that she had not referred the child for a Sexual

Assault Forensics Exam. Id. at 458. As in Atkins, based on defense counsel’s

cross-examination and before closing argument, the court gave a CSI-effect

instruction. Id. at 460,462.

When the instructional issue reached this Court, it began by re-emphasizing

the constitutional nature of the right to a fair jury, “which includes a requirement

that trial judges refrain from making statements, that may influence improperly the

jury,” id. at 463, and by reiterating that “[a]n improper, objectionable instruction

includes one that serves to relieve the state of its burden to prove a defendant’s

guilt beyond a reasonable doubt,” id. at 464. After reviewing Atkins and scientific

literature concerning the purported “CSI effect,” id. at 466-70, the Court addressed

the instruction in the context of the facts of the case and again held that reversal

was required.

Although the Court recognized that the “missing” evidence in the case

before it may not have been as “critical” as the “missing” evidence in Atkins’s

case, id. at 470, it explained that one problem with the instruction was that “the

lack of scientific evidence was an integral part of the defense’s theories,” id. at

471. The Court ,stated that the fact that the instruction “was given preemptively,

i.e., before any .explicit argument by the defense on the absence of DNA or

fingerprint testing of Kaylpn J. or her clothing” was another problem. Id. at 471.

And, the Court noted that ultimately defense counsel’s closing argument was

“proper,” “did not ‘harp’ impermissibly on the lack of physical evidence,” and did

not “advance a. ‘missing evidence’ argument that implied that ‘missing’ evidence

would favor him.” Id. at 471-72.

The Court then held, as it had in Atkins, that the CSI-effect instruction

invaded the province of the jury because it “directed effectively the jurors not to

consider the absence of a SAFE or corroborating physical evidence.” Id. at 472.

The Court also held, as it had in Atkins, that the instruction “relieved the State of

its burden to prove Stabb was guilty beyond a reasonable doubt.” Id.

PGVg

C. Charles, Atkins, and Stabb apply to cases that

became final before those decisions issued.

1. General principles.

On a number of occasions, this Court has addressed whether a particular

judicial decision should be applied retroactively, or retrospectively, to a conviction

that became final before the decision issued. A review of that jurisprudence

reveals two general, guiding principles. The first principle is that a decision which

applies settled precedent to a new set facts applies retroactively to all convictions,

even those that became final before the decision issued. That principle, which

controls the instant case, was most recently articulated by this Court in Denisyuk v.

State, 422 Md. 462 (2011).

The second principle is that a decision which

announces a new rule that represents a clear break with the past applies

retroactively to convictions that became final before the decision issued in only a

few narrow circumstances. That principle, which is not implicated in the instant

case, was discussed in Wiggins v. State, 275 Md. 689 (1975) and State v. Hicks,

285 Md. 310 (1979).

la Denisyuk, one of the issues before this Court was whether Padilla v.

Kentucky’, 559 U.S. 356 (2010) applied to Denisyuk’s conviction, which became

final before Padilla was decided. Denisyuk, 422 Md. at 466, 478. At the outset of

its discussion of that issue, this Court explained:

Under Maryland law:

‘the question of whether a particular judicial decision should be

applied prospectively or retroactively, depends in the first instance

n •

. r-r-J

on whether or not the decision overrules a prior law , and declares a

new principle of law. If a decision does not, ... no question of a ,

‘prospective only’ application arises; the decision applies

retroactively in the same manner as most decisions.’

Id. at 478 (quoting State v. Daughtry, 419 Md. 35, 78 (2011)).9

The Court

continued, “Of particular relevance to this case, we have explained that, ‘where a

new decision has applied settled precedent to new. and different factual situations,

the decision always applies retroactively[,] ’ and it is only ‘where a new rule . . .

constitutes ‘a clear break with the past. . .” that the question of prospective only

application arises.” Id. (quoting Potts v. State, 300 Md. 567, 577 (1984)) (in turn

quoting United States v. Johnson, 457 U.S. 537, 549 (1982)).

The Court then applied that principle to the case before it. After reviewing

Padilla, it concluded that Padilla did not announce, a new rule but instead applied

a “general standard” to a “specific set of facts.” Id. at 481. See also id. at 481-482

(“Stated differently, the holding of Padilla did not ‘overrule [ ] prior law and

declare[ ] a new principle ofTaw. Rather, Padilla applied ‘settled precedent [i.e.,

Strickland] to [a] new and different factual situation[ ] . . ..”) (internal citations

omitted) (alterations in original). Thus, the Court held that it applied retroactively

to Denisyuk’s conviction.10 Id. at 482.

9 At the time of Denisyuk and Daughtry, when this Court said that it was

applying a holding “prospectively only,” it meant that it was applying the holding

to the case before it and to “all other pending cases where the relevant question”

had been preserved for appellate review. See Daughtry, 419 Md. at 77, n.26

(quoting Am. Trucking Ass’ns, Inc. v, Goldstein, 312 Md. 583, 592 (1988)).

10 In Chaidez v. United States, 568 U.S. 342 (2013), the Supreme Court

held that Padilla had in fact announced a new rule and thus did not apply

In Wiggins, this Court had to decide whether a federal case, which held the

Maryland Juvenile Causes Act was unconstitutional and thus announced a new

rule, should be applied retrospectively to Wiggins’s convictions, which became

final well before the federal case was decided. 275 Md. at 691. In Hicks, the

Court had to decide whether its decision, which announced a new rule by holding

for the first time that a violation of the time requirement in then-Rule 746 required

dismissal of a case, should be applied prospectively only. 285 Md. at 336. The

Wiggins Court, relying on a number of Supreme Court cases, opined that there

'were “three circumstances in which retrospective application” of a case

announcing a new rule “is mandated.” 275 Md. at 701. Those circumstances are

“(1) where the old rule affected the integrity of the fact-finding process, (2) where

no trial was constitutionally permissible, and (3) where the punishment is not

constitutionally permissible.”11 Id.

See also Unger v. State, 427 Md. 383, 416

retroactively to final convictions. In Miller v. State, 435 Md. 174 (2013), this

Court held that Miller was not entitled to relief under Padilla in light of Chaidez.

Although Chaidez runs contrary to the Court’s conclusion in Denisyuk that Padilla

did not announce a new rule ■ neither Chaidez nor Miller undermines the general

principle that decisions that apply settled precedent to new facts apply

retroactively to all cases, final or not. Thus, that portion of Denisyuk remains

good law.

11 In contrast, a case that announces a new interpretation of a constitutional

provision, statute, or rule will always apply to cases that are not yet final. See

Kumar v. State, All Md. 45, 57-58 (2021) (“[A] new interpretation of a

constitutional provision, statute, or rule has included the case before us and all

other pending cases where the relevant question has been preserved for appellate

review.”); Kazadi v. State, 467 Md. 1, 47 (2020) (overruling Twining v. State, 234

Md. 97 (1964), requiring courts to ask, upon request, certain voir dire questions,

and stating “that our holding applies to this case and any other cases that are

PGrW

■ af

(2012) (“It is a well-established principle of Maryland law that a new

interpretation of a constitutional provision or a statute is fully retroactive if that

interpretation affects the integrity of the fact-finding process.”).

The Court then

recognized that if the new rule does not fall within one of those three categories,

the court should employ a balancing test to determine whether the rule should

apply retroactively to final convictions. V/iggins, 275 Md. at 701. The relevant

considerations under that test are “(1) the purpose of the new ruling; (2) the

reliance placed upon the old ruling; and (3) the effect on the administration of

justice of a retrospective application of the new ruling.” Hicks, 285 Md. at 337.

“Where the purpose of the new ruling is not ‘concerned with the ultimate fact

finding determination of whether the accused did or did not commit the act he is

said to have committed,’ Wiggins v. State, supra, 275 Md. at 708, 344 A.2d at 91

(majority opinion),... the new ruling is usually limited to subsequent cases.” Id.

Ultimately, the Wiggins Court held that the federal case should not be applied

retrospectively to Wiggins’s convictions, 275 Md. at 716, and the Hicks Court

held its decision should be applied “purely prospectively,” 285 Md. at 336.

2. Application to the instant case.

As noted above, Mr. McGhee’s case is controlled by the first principle.

Charles, Atkins, and Stabb did not overrule prior law and declare new principles of

law. To the contrary, those decisions merely applied settled precedent to new and

pending on direct appeal when this opinion is filed, where the relevant question'

has been preserved for appellate review”).

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.■'j

different factual situations.

Accordingly, they apply retroactively to Mr.

McGhee’s post-conviction proceeding, even though his conviction became final

before the decisions issued.12

In Atkins and Stabb, this Court was asked to consider whether a CSI-effect

jury instruction invaded the province of the jury, was a “non-neutral commentary

on the evidence,” and had the effect of lowering the State’s burden of proof.

Atkins, 421 Md. at 437; Stabb, 456 Md. at 472. To resolve those questions, the

Court relied on well-known constitutional principles.

For example, the Court

notea tnat defenaants have a constitutional rignt to a fair triai, a constitutional right

“to be tried by a fair and impartial jury,” and a constitutional right to have the

State prove its case beyond a reasonable doubt, and it recognized that together

those'rights'require that a trial judge “refrain from making statements] that may

influence improperly the jury,” refrain from commenting “on a question of fact”

because “such commentary invades the province of the jury,” and refrain from

giving an instruction that “serves to relieve the State of its burden of proof.”

Atkins, 421 Md. at 443; Stabb, 423 Md. at 463-65. The Court also relied on Older

cases like Gore v. State, 309 Md. 203 (1987), Dempsey v. State, 277 Md. 134

(1976), and State v. Evans, 278 Md. 197 (1976), that had applied those same

12 A conviction becomes final when “the right to a direct appeal has been

exhausted.” Kumar, All Md. 45, 54 n.4. As explained above, the intermediate

court affirmed Mr. McGhee’s conviction on direct appeal on June 23, 2009,

(E.369-382), and this Court denied Mr. McGhee’s petition for writ of certiorari on

September 14, 2009, (E.8). Thus, by 2010 and 2011 when Charles, Atkins, and'

Stabb were decided, Mr. McGhee’s conviction was final.

principles to other alleged instructional errors.13 Atkins, 421 Md. at 443-46, 452;

Stabb, 423 Md. at 463-65, Applying those principles and cases to the CSI-effect

jury instructions before it, the Atkins and Stabb Courts concluded that the

instructions were error because they could have impermissibly influenced the

jury’s ability to draw inferences from the lack of scientific evidence, because they

improperly invaded the province of the jury, and because they had the effect of

lowering the State’s burden of proof. Atkins, 421 Md. at 451-55; Stabb, 423 Md.

at 471-72. Far from announcing a new rule or principle that constituted a clear

break with the past, Atkins and Stabb are quintessential examples of cases that

applied settled precedent and principles to a new and different factual situation.

See also Yates v. Aiken, 484 U.S. 211, 216 (1988) (discussing whether Francis v.

Franklin, 471 U.S. 307 (1985) applied retroactively to Yates’s case which was on

collateral review when Francis was decided, explaining that “[fjirst, it is necessary

’

to determine whether a particular decision has really announced a ‘new’ rule at all

or whether it has simply applied a well-established constitutional principle to

govern a case which is closely analogous to those which have been previously

considered in the prior case law,” and determining that Francis applied to Yates

13 In Gore, this Court held that a trial court erred when it instructed the jury

that the court had already determined that the evidence was sufficient as a matter

of law, finding the instruction to be an improper comment on the evidence. 309

Md. at 209-14. In Dempsey, this Court considered a trial court’s instruction to the

jury on the voluntariness of a defendant’s confession and held that the instruction,

which told the jury that the court had determined the confession was voluntary,

had the effect of improperly influencing the jury. 277 Md. at 150. In Evans, this

Court reviewed an instruction that told the jury that malice could be presumed and

held the instruction relieved the State of its burden of proof. 278 Md. at 205-06

Iff

}

because it “was merely an application of the principle that governed” an earlier

decision); Daughtry, 419 Md. at 80-81 (concluding that “[o]ur decision in the

present case in no way ‘overrules prior law and declares a new principle of law”

and instead “is consistent entirely with Rule 4-242(c), its predecessor, and

attendant caselaw” and stating that the decision “must be given full retrospective

effect”); Walker v. State, 343 Md. 629, 634, 640 (1996) (holding that State v.

Jenkins, 307 Md. 501 (1986) did not announce a new rule of law and affirming

circuit court’s conclusion thJenkins applied to Walker’s conviction, which

became final before Jenkins was decided); Jones v. State, 297 Md. 7, 24-25 (1983)

(concluding, in a case where the State asked the Court to determine whether its

holding should be given prospective or retrospective application, that its holding

did not represent a change, in the law'arid therefore “the issue of retroactivity is not

presented”); Twigg v. State, 219 Md. App. 259, 280 (2014) (holding that

Nightingale v. State, 312 Md. 699 (1988), in which the Court “applied the

principles of the required evidence test under Blockburger to sexual offenses that

formed the factual basis for a conviction for sexual child abuse,” was an

application of settled precedent to a new set of facts and thus applied to Twigg’s

conduct which occurred prior to the issuance of Nightingale, and holding that

White v. State, 318 Md. 740 (1990), in which the Court “used the principles of

statutory construction to ascertain whether the legislative intent of the child abuse

statute supported separate punishments for murder and child abuse where both

convictions were based on the same act or acts,” also was an application of settled

fQ,:

<93

precedent to a new set of facts and thus applied to Twigg’s conduct which

occurred prior to the issuance of White), affd in part, rev ’d in part, 447 Md. 1

(2016).

The Court of Special Appeals’ decision in Allen v. State, 204 Md. App. 701

(2012) supports the conclusion that Atkins and Stabb should be applied

retroactively to Mr. McGhee’s conviction. In that case, the defendant challenged

the trial court’s decision to give a CSI-effect jury instruction, and he argued that

Atkins and Stabb, which were decided after his trial, should be applied to his direct

appeal. 204 Md. App. at 703, 706. After the intermediate Court engaged in a

thorough review of Supreme Court and Maryland jurisprudence on retroactivity, it

summarized some of the relevant principles:

[Ujnder current Maryland law, , the question of whether a new „

constitutional or statutory decision in the criminal law area should be

applied prospectively or retroactively arises only when the decision

declares a new principle of law, as distinguished from applying

settled principles to new facts. If it does not declare a new principle,

it is fully retroactive and applies to all cases. Denisyuk, 422 Md. at

478-79, 30 A.3d 914. A new constitutional or statutory ruling, in the

criminal law context, ordinarily applies to the facts in the case

, announcing the change and those cases pending on direct review in

which the issue was preserved. A new constitutional or statutory

decision will also be fully retroactive, i.e., apply to convictions

which were final, when the change affected the integrity of the fact

finding process or the change involved the ability to try a defendant

or impose punishment.

Id. at 721 (emphasis added). It then applied those principles and, for any one of

three different reasons, held that Atkins and Stabb applied to Allen’s case. The

second reason is relevant here:

f&AH

Second, it is not clear that a retroactivity analysis is implicated. The

Atkins and Stabb holdings are clearly based on constitutional

principles, Atkins, 421 Md. at 443, Stabb, 423 Md. at 472, but we

read the decisions not as creating new constitutionally based

' principles but rather as applying settled federal and State

constitutional guarantees to ‘new and different factual situations.’

Potts, 300 Md. 567, 577, 479 S.2d 1335 (1984). The Court of

Appeals did not overrule our decision in Evans; it clarified and

distinguished it. In such a case, ‘the decision always applies

retroactively.’ Id.

Id. at 722 (emphasis added).

Although not necessary to decide the case before it, the Court went on to

consider “whether Atkins and Stabb apply to collateral review, i.e., to cases in

which convictions were final prior to the decisions.” Id. After reviewing this

Court’s decision Denisyuk, it concluded, “The Denisyuk analysis and result

appears to be applicable to Atkins and Stabb A Id. at 723.

A review of Charles reveals that it too should be applied to Mr. McGhee’s

conviction. The Charles Court relied on a defendant’s “fundamental right” to

have the jury told that it may find him not guilty and on Hutchinson, a case which

involved a jury instruction that used “similar language,” to hold that the voir dire

question before it was prejudicial and thus erroneous. Like Atkins and Stabb,

Charles did not announce a new rule that constituted a clear break with the past;

rather, it applied settled principles and precedent to a new set of facts. The case

therefore applies to Mr. McGhee’s conviction.

As noted earlier, the post-conviction court and the Court of Special Appeals

concluded that Charles, Atkins, and Stabb did not apply to Mr. McGhee’s case.

u ■

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£5

Both courts relied on State v. Armstead, 235 Md. App. 392 (2018) for that

conclusion. A brief review of Armstead reveals that its analysis is flawed.

In a post-conviction proceeding, Armstead alleged his trial attorney was

ineffective for failing to object at his 2009 trial to a CSI-effeCt voir dire question.

Id. at 397-98. The post-conviction court agreed and granted relief. One of the

issues on appeal was whether Charles, Atkins, and Stabh, which were decided

after Armstead’s convictions became final, should be applied to his claim of

ineffective assistance. Id. at 407. Armstead, of course, argued that the cases

should be applied to his case, and cited Allen in support. Id.

The Corn! of Special Appeals disagreed:

Armstead demands the benefit of Charles & Drake (2010) and

McFadden & Miles (2011); that is, their holdings and reasoning

should apply retrospectively to the ineffective counsel analysis in his

post-conviction case, based on Allen, 204 Md. App. 701, 42 A.3d

708. We disagree. First, Armstead’s reliance on Allen is misplaced.

We held in Allen that Atkins and St abb would apply retrospectively

to then pending direct appeal cases where objections preserved a

challenge. See Allen, 204 Md. App. at 721-22, 42 A.3d at 720-21.

Further, Atkins and Stabb considered CSI jury instructions, not voir

dire questions.

Id. at 423-424. After explaining that voir dire questions and jury instructions

serve different purposes and after noting that the prejudice from an erroneous voir

dire question may be less than the prejudice from an erroneous jury instruction, the

Court said, “Armstead’s present case is a. 2014-16 post-conviction, not a direct

appeal from his 2009 conviction. Moreover, the critical issue, as noted above, is

unpreserved for our review.

Armstead’s current case fails each predicate of

ol (o

Allen's analysis to support retrospective application of the relevant post-2009 case

law.” Id. at 425. The Court then explained that Armstead’s counsel was not

“ineffective for failing to object,” and said, “Even were we to assume for the

moment, that Armstead’s invocation of Maryland’s post-2009 reported, direct

appeal jurisprudence regarding a trial court’s use of CSI effect voir dire questions

(or instructions) were applicable here, we find no prejudice (the other component

of Strickland) on this record.” Id.

Tn rejecting Armstead’s claim that Charles, Atkins, and Stabb should be

applied to his post-conviction claim, the Court of Special Appeals completely

ignored the actual reasoning of Allen: that Atkins and Stabb did not announce a

new rule and instead merely applied settled principles to a new set of facts. If that

reasoning is correct, which it is, then under established retroactivity principles,

Atkins and Stabb (and for the same reason, Charles) apply to all cases, even those

where the convictions became final before the trilogy issued. Thus, it is irrelevant

that Allen was a direct appeal while Armstead was a collateral proceeding, and,

although it might have a bearing on whether counsel should have known to object

to the voir dire question, it matters not that Atkins and Stabb involved a challenge

to a jury instruction while Armstead involved a challenge to a voir dire question.

Charles, Atkins,

and Stabb

should be

applied retroactively,

retrospectively, to Mr. McGhee’s case and to his ineffective assistance claim

because those cases did not overrule prior law and declare new principles of law

but instead applied settled precedent and principles to new factual situations. As

PQ,

explained below, when trial counsel’s failure to object to the CSI-effect voir dire

question is viewed through the lens of that trilogy of cases, it is evident that

counsel’s performance was deficient and that the deficient performance prejudiced

Mr. McGhee.

II.

Mr. McGhee’s trial counsel rendered ineffective

assistance of counsel when at Mr. McGhee’s 2007 trial,

she failed to object to a CSI-effect voir dire question.

A. The law on ineffective assistance of counsel.

“Under the Sixth Amendment to the Constitution of the United States and

Article 21 of the Maryland Declaration of Rights, a defendant in a criminal case

has ‘a right to effective assistance of counsel.’” Ramirez v. State, 464 Md. 532,

538-39 (2019), cert denied, 140 S. Ct. 1134 (2020) (quoting Newton v. State, 455

Md. 341, 355 (2017)). In Strickland v. Washington, 466 U.S. 668 (1984), the

Supreme Court articulated a “two-prong test for resolving a claim of ineffective

assistance of counsel.” State v. Mann, 466 Md. 473, 490 (2019), cert, denied, 141

S.Ct. 337 (2020).

“The first prong is known as ‘the performance prong.’”

Ramirez, 464 Md. at 560. To satisfy this prong, “a [defendant] ‘must show that

counsel’s performance was deficient,”’ which requires a showing “‘that counsel’s

representation fell below an objective standard of reasonableness ... under

prevailing professional norms.’” Id. at 560-62 (quoting Strickland, 466 U.S. at

687-88). In making this showing, a defendant “‘must overcome the presumption

that, under the circumstances, the challenged action might be considered sound

trial strategy.’” Id. at 561 (quoting Strickland, 466 U.S. at 689-90).

The second prong of the Strickland test is the “prejudice prong.” Mann,

466 Md. at 490. To satisfy this prong, 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 [ ] or ... that the result of the proceeding

was fundamentally unfair or unreliable.”’ Wallace v. State, 475 Md, 639, 656

(2021) (quoting Newton, 455 Md. at 355). A reasonable probability means “‘there

was a substantial or significant possibility that the verdict . . . would have been

affected,” Mann, 466 Md. at 491 (quoting State v. Syed, 463 Md. 60, 86-87

(2019)).

In the instant case, Mr. McGhee alleged that his attorney was ineffective for

failing to object to the CSI-effect voir dire question, and thus for failing to

preserve the issue for appeal. (E.395-403). When presented with a claim that

counsel was ineffective because they failed to preserve an issue for appellate

review, “Strickland’s performance and prejudice prongs naturally overlap because

the questions of whether counsel’s performance was adequate and whether it

prejudiced the petitioner both will turn on the viability of the omitted claims [.J

Gross v. State, 371 Md. 334, 350 (2002). This is so because the failure to preserve

“an issue that is without merit does not constitute ineffective assistance of

counsel.”

Id.

“An advocate does render ineffective assistance of counsel,

however, by failing to preserve ... a claim that would have had a substantial

possibility of resulting in a reversal of petitioner’s convictions.” Id. See also State

v. Thomas, 325 Md. 160, 188 (1992) (holding, in a case where the petitioner

ft ae\

alleged that his trial attorney was ineffective for failing to preserve for appellate

review the trial court’s refusal to strike certain venire members for cause, that

petitioner had not shown “an abuse of discretion by the trial judge that would have

resulted in a reversal of his convictions on direct appeal”); Testerman v. State, 170

Md. App. 324, 343 (2006) (holding, in a case where the defendant alleged that his

trial attorney was ineffective for failing to preserve a meritorious sufficiency

argument for appellate review, that the defendant had proven prejudice because he

had demonstrated that “in this appeal we would have directly reviewed and

reversed the sufficiency of the evidence of appellant’s conviction”).

B. Standard of review.

“In reviewing a trial court’s ruling on a petition for post-conviction relief,

an appellate court reviews for clear error the [post-conviction] court’s findings of

fact.” Ramirez, 464 Md. at 560. The post-conviction court’s legal conclusions, on

the other hand, are reviewed de novo.

Wallace, 475 Md. at 653.

Stated

differently, this Court exercises its “own independent analysis as to the

reasonableness, and prejudice therein, of counsel’s conduct.” Id. (quoting Syed,

463 Md. at 73).

C. Mr. McGhee’s trial counsel’s failure to object to the

CSI-effect voir dire question amounted to deficient

performance.

As explained previously, Charles, Atkins, and Stabh apply to all cases,

including to cases that became final before those opinions issued. When counsel’s

conduct is viewed through the prism of those cases, none of which announced a

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new rule or principle, the inevitable conclusion is that her performance was

deficient.14 See Unger, All Md. at 408 (explaining that if Stevenson v. State, 289

Md. 167 (1980) and Montgomery v. State, 292 Md. 84 (1981), which concerned

the propriety of advisory-only jury instructions and which issued after Unger’s

convictions became final, had not announced a new rule, Unger would have had a

“sound basis” for arguing that his trial attorney should have objected to the

advisory-only instructions in his case and that the failure to object was deficient).

In Charles, the court asked the venire to rise “if you are currently of the

opinion or belief that you cannot convict a defendant without ‘scientific evidence,’

regardless of the other evidence in the case and regardless of the instructions that I

will give you as to the law[.]” 414 Md. at 730. In this case, the court asked the

venire: “Does any member of this panel believe that the State has got to present

fingerprint evidence, DNA, blood sample evidence, ballistic evidence, any

scientific evidence in order to convince you of the defendant’s guilt? In other

words, do you think the State has a requirement to do that in all cases?” (E.75).

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14 The post-conviction court was not convinced by the argument that

Charles, Atkins, and Stabb applied to Mr. McGhee’s case and thus did not reach

the deficiency prong with respect to this allegation of ineffective assistance.

(E.513) (“Although at the time of Petitioner’s trial, the CSI question was allowed,

the Court believes the question must still be analyzed based on its prejudicial

effect on the jury.”) Because this Court’s review of the deficiency prong is de

novo, Wallace, 475 Md. at 653, and because this Court can affirm the post

conviction court’s decision on any ground supported by the record, Unger v. State,

All Md. 383, 403-04 (2012), it can review the deficiency prong of Strickland in

light of Charles, Atkins, and Stabb even though the post-conviction court did not

do so.

suggested that the jury’s only option was to find Mr. McGhee guilty, regardless of

whether the State produced certain scientific evidence, and its language was “not

neutral,” using the term guilty, rather than its alternative, “not guilty.” Indeed in

Stringfellow v. State, 199 Md. App. 141, 152-153 (2011), the Court of Special

Appeals recognized that a voir dire question which asked, “Does any member of

the panel believe that the State is required to utilize specific investigative or

scientific techniques such as fingerprint examination in order for the defendant to

be found guilty beyond a reasonable doubt?” ran afoul of Charles}s

The CSI-effect question in the instant case was also objectionable under

Atkins and Stabb. Although those cases concerned jury instructions, then- holdings

are applicable to the voir dire context, as both this Court and the Court of Special

Appeals have recognized.

In its Stringfellow> decision, this Court explained,

‘‘‘’Stabb and Atkins discuss when it may be permissible for courts to pose a voir dire

question or a jury instruction to counter what has been referred to popularly as the

‘anti-CSI effect.’ Suffice it to say, these cases hold that it is error to pose such a

question or instruction as a pre-emptive measure (as was done in this case).” 425

Md. at 474, n.4. And, in Armstead, the Court of Special Appeals recognized that

Stabb and Atkins “make clear, based on the "inconclusive state of the scholarly

legal and/or scientific research [ ] taken as a whole,’ that Maryland disapproves of

15 This Court overruled the Court of Special Appeals’ preservation and

harmless error holdings in its Stringfellow decision. It did not discuss the wording

of the challenged voir dire question, however. Instead, it assumed for purposes of

its harmless error analysis that the court erred in asking the question. State v,

Stringfellow, 425 Md. 461, 469 (2012).

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preemptive anti-CSI messages to the venire or the empaneled jury. There must be,

at a minimum, some form of relevant misstatement(s) of the law or conduct by

counsel for the court to issue an appropriate and curative CSI effect jury

instruction or similar anticipatory grounds to ask a voir dire question.” 235 Md.

App. at 413-14. Armstead also recognized that Stabb clarified that even when an

anti-CST message is appropriate, “the message must be neutral, i.e., the message

must not convey to the jury that their only option is to convict, even if no forensic

evidence linking the defendant to the crime(s) is adduced by the State.

The

message should (at least) include language indicating that a not guilty verdict is an

alternative.” Id. at 414-15.

The question the court posed to Mr. McGhee’s venire was not neutral and

did hot include language indicating that a not guilty verdict was an acceptable

alternative. It was also given preemptively: no one, including defense counsel,

had misstated the law such that court needed to take curative steps. Furthermore,

the question had the effect of minimizing the State’s burden of proof and invading

the province of the jury because it signaled to the venire before they were even

seated that they could disregard the lack of forensic evidence.

Because the voir dire question in this case was objectionable under Charles,

Atkins, and Stabb, defense counsel’s failure to object amounted to deficient

performance. At the post-conviction hearing, defense counsel was not asked why

she did not object to the voir dire question. She did, however, testify that her

theory of the case was that, in light of the lack of DNA evidence and fingerprint

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evidence, the State did not have “conclusive evidence” that Mr. McGhee was the

shooter, and she explained that her strategy was “to focus on the fact that the State

didn’t have enough to put Mr. McGhee there.” (E.450-452, 458-460).

That

theory and strategy were directly undermined by the voir dire question, which

among other things, told the jury it could disregard the lack of fingerprint and

DNA evidence. Although it is true that there is “a presumption that counsel

rendered reasonable assistance,” State v. Syed, 463 Md. 60, 75 (2019), the failure

of counsel to object to a voir dire question whose impact was to undermine her

defense plainly fell below “prevailing professional norms,” id., and could not be

justified by any trial strategy. Similarly, counsel’s failure to object to a question

whose impact was to poison members of the venire who might end up on the

seated jury fell below professional norms and could not be justified by trial

strategy. Accordingly, this Court must find that counsel’s failure to object, and

thus to preserve a meritorious issue for appellate review, was deficient.

The Court of Special Appeals concluded that Mr. McGhee had not met his ,

burden of proving that his attorney’s performance was deficient. In reaching that

conclusion, the Court did not analyze his counsel’s failure to object in light of

Charles, Atkins, and Stabb because it did not believe those cases applied

retroactively. (E.531-532, n.4). Rather, the Court noted that Evans v. State, 174

Md. App. 549 (2007), which involved the propriety... of a CSI-effect jury

instruction, was the only reported decision at the time of Mr. McGhee’s trial, and

it noted that Mr. McGhee had not presented any evidence “that the prevailing

Pc,

professional norm at the time of his trial was to object to “CSI effect” messages to

the venire or jury.” (E.531).

As an initial matter, the intermediate Court’s holding is fatally flawed

because it did not take into account, as it should have, the fact that Charles, Atkins,

and St abb do in fact apply retroactively and therefore bear on the deficiency

analysis. Furthermore, to the extent that Evans affects how this Court views

counsel’s conduct, it supports the conclusion that counsel’s failure to object to the

voir dire question amounted to deficient performance.

In Evans, the issue before the Court of Special Appeals was whether the

trial court abused its discretion when it gave a CSI-effect instruction that was

identical to the instructions at issue in Atkins and Siabb. 174 Md. App. at 562-71.

Although the Court ultimately held that the trial court did not abuse its discretion

in propounding the instruction, it did not put its stamp of approval on CSI-effect

messages in all cases. Instead, its holding was limited to the facts of the case

before it. Specifically, the Court explicitly relied on the fact that defense counsel

suggested in their “robust and vehement” closing arguments that the State was

required to produce certain scientific evidence. Id. at 570. Thus, the instruction

served a curative function.

Moreover, the Court cautioned that a CSI-effect

instruction “will run afoul of the prohibition against relieving the State of its

burden of proof where the instruction is predominant in the overall instructions

and its relation to the reasonable doubt standard unclear.” Id. at 571.

PC,

Obviously, at the voir dire stage of trial, Mr. McGhee’s counsel had not

suggested to the jury (nor did she suggest at a later time) that the State was

required to produce scientific evidence; therefore, a curative message was

unwarranted. Likewise, at the voir dire stage, the jury had not been instructed on

reasonable doubt; therefore, the relation of CSI-effect message to the reasonable

doubt standard was unclear. Given the emphasis the Evans’ Court placed on the

(

misleading nature of defense counsel’s, argument and given its caution that a CSIeffect instruction could in some instances relieve the State of its burden of proof,

that case does not undermine Mr. McGhee’s argument that his counsel’s failure to

object to the question was deficient; rather, it supports it.

'> 1

Any reasonably

competent attorney should have extrapolated from Evans that the voir dire

question was problematic and thus worthy pf an objection.16

%% .

16 It is worth noting that trial counsel in Charles objected to the CSI-effect

voir dire question in 2006, well before Mr. McGhee’s trial. See Armstead, 235

Md. App. at 422, n.15.

APPENDIX

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.