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

Supreme Court briefJan 4, 2023

Ask Donna

What actually matters in this document.

Text

Circuit Court for Prince George’s County

Case No.: CT07-1096X

Argued: September 12, 2022

IN THE COURT OF APPEALS

OF MARYLAND

No. 64

September Term, 2021

ANTONIO MCGHEE

STATE OF MARYLAND

Fader, C.J.

Watts

Hotten

Booth

Biran

Gould

Eaves,

JJ.

Opinion by Biran, J.

Filed: October 24, 2022

Pursuant to Maryland Uniform Electronic Legal

Materials Act

(§§ 10-1601 et seq. of the State Government Article) this document is authentic.

fa 1 aI 2022-10-24

11:21-04:00

Suzanne C. Johnson, Clerk

Antonio McGhee v. State of Maryland, No. 64, September Term, 2021.

Opinion by Biran, J.

CRIMINAL LAW

INEFFECTIVE ASSISTANCE OF COUNSEL

“CSI-EFFECT” VOIR DIRE QUESTION - During jury selection at Petitioner’s 2007

murder trial, Petitioner’s attorney did not object to a voir dire question that asked: “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?” The jury found Petitioner guilty. In a trilogy of cases

that the Court of Appeals decided in the years following Petitioner’s trial, the Court held

that so-called “CSI-effect” voir dire questions and similar jury instructions can improperly

intrude on the province of the jury. Charles v. State, 414 Md. 726 (2010); Atkins v. State,

421 Md. 434 (2011); Stabb v. State, 423 Md. 454 (2011). In 2014, Petitioner filed a

post-conviction claim alleging that his trial counsel provided ineffective assistance of

counsel by not objecting to the CSI-effect voir dire question at his trial. The Court of

Appeals held that, under the prevailing professional norms that existed in 2007, defense

counsel’s failure to object to a CSI-effect voir dire question did not render counsel’s

performance constitutionally deficient under Strickland v. Washington, 466 U.S. 668

(1984). The Court declined to address the retroactivity of Charles, Atkins, and Stabb in

determining whether counsel’s conduct was objectively unreasonable, because Strickland

requires a post-conviction court to assess an attorney’s performance based on the prevailing

professional norms at the time of the contested conduct. Cases that are decided after a

defendant’s trial do not shed light on the professional norms that existed at the time of the

defendant’s trial.

This case arises from a post-conviction court’s grant of a new trial to Petitioner

Antonio McGhee based on ineffective assistance of counsel. In December 2007, a jury in

the Circuit Court for Prince George’s County convicted McGhee of the murder of Keith

Dreher. The basis of McGhee’s ineffective assistance of counsel claim is his counsel’s

failure to object to what courts and commentators have called a “CSI-effect” voir dire

question.

The “CSI effect” describes the theorized impact of television crime scene dramas

on jurors. The theory suggests that, based on the proliferation of programs such as CSI,

jurors in criminal cases now expect the prosecution to produce DNA evidence and/or other

forensic evidence to prove a defendant’s guilt, and that juries are prone to wrongfully acquit

criminal defendants where the prosecution does not produce such evidence. See, e.g.,

Robinson v. State, 436 Md. 560, 570 n.ll (2014) (citing Donald E. Shelton, Juror

Expectations for Scientific Evidence in Criminal Cases: Perceptions and Reality About the

‘CSIEffect’Myth, 27 T.M. COOLEY L. Rev. 1, 3 (2010)).

In 2010 and 2011 - more than two years after McGhee’s trial - this Court considered

three cases related to the CSI effect, and held in each that a CSI-effect message from the

bench constituted reversible error. See Charles v. State, 414 Md. 726 (2010); Atkins v.

State, 421 Md. 434 (2011); Stabb v. State, 423 Md. 454 (2011). One of the questions before

this Court is whether to apply these three cases retroactively in the context of an ineffective

assistance of counsel claim.

In Strickland v. Washington, the Supreme Court set out the controlling test for

evaluating an ineffective assistance of counsel claim under the Sixth Amendment. 466 U.S.

668 (1984). The Strickland test requires a petitioner claiming ineffective assistance of

counsel to make two showings. First, the petitioner must show that counsel’s performance

was deficient. Id. at 687. “This requires showing that counsel made errors so serious that

counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment.” Id. Second, “the defendant must show that the deficient performance

prejudiced the defense.” Id.

Under Strickland, in considering the first “performance” prong of the test for

ineffective assistance, we are bound to evaluate defense counsel’s conduct according to

professional norms that existed at the time of the contested action (or inaction). Id. at 689.

This analysis precludes us from evaluating counsel’s conduct based on law that did not

exist at the time. Thus, we do not assess counsel’s performance at McGhee’s trial as if it

occurred after this Court decided Charles, Stabb, and Atkins. Under the professional norms

that existed at the time of McGhee’s trial, defense counsel’s failure to object to a CSI-effect

voir dire question did not render her performance constitutionally deficient.

Background

A. Maryland Jurisprudence Concerning the “CSI Effect”

1. CSI-Effect Jury Instructions

The term “CSI effect” emerged in 2002. Robinson, 436 Md. at 570. Due to the

popularity of forensic crime scene television series such as CSI: Crime Scene

Investigation,* commentators speculated that such programs may heighten juror

expectations for forensic evidence. Id. at 570-71 (citing Jenny Wise, Providing the CSI

Treatment: Criminal Justice Practitioners and the CSI Effect, 21 CURRENT ISSUES CRIM.

JUST. 383, 383-84 (2010); Simon A. Cole & Rachel Dioso-Villa, Investigating the ‘CSI

Effect’ Effect: Media and Litigation Crisis in Criminal Law, 61 STAN. L. Rev. 1335,

1338-39 (2009)). Studies that considered whether viewing CSI-type programs affected

jurors’ verdicts yielded inconclusive results. See Robinson, 436 Md. at 571-72.

Nevertheless, some courts began giving jury instructions to guard against a potential

CSI effect. These were sometimes referred to as “anti-CSI effect” instructions. See id. at

572. The advent of these jury instructions generated unique questions about the interaction

of pop culture, the role of the jury, and the State’s burden of proof, prompting consideration

in Maryland’s appellate courts.

In 2007, the Court of Special Appeals considered for the first time whether the

giving of a CSI-effect jury instruction constituted reversible error - specifically, whether

the instruction relieved the State of its burden of proof. Evans v. State, 174 Md. App. 549

CSI: Crime Scene Investigation aired on CBS from 2000 through 2015. Set in Las

Vegas, CSI was immensely popular and spawned several spinoff series, including

CSI: Miami, CSI: NY, and CSI: Cyber. See CSI: Crime Scene Investigation, Editors of

Encyclopaedia Britannica, BRITANNICA, available at https://perma.cc/WA85-DK3A; see

also Atkins v. State, 421 Md. 434, 457-58 (Harrell, J., concurring) (observing that the

“success of ‘forensic’ dramas ... skyrocketed in 2000 with the debut of CSI: Crime Scene

Investigation, referred to as ‘the most popular television show in the world’ at one time”

and noting that, in a 2006 Nielsen rating, 30 million people watched CSI in one night; 70

million people watched one of the three CSI shows then in production; and 40 million

people watched two other forensic dramas, Without a Trace and Cold Case) (citations

omitted). In 2021, the Las Vegas iteration of the CSI franchise returned to television as

CSI: Vegas. See CSI: Vegas, CBS, available at https://perma.cc/B9F6-ENEJ.

(2007). The State charged Evans and another man with possession and distribution of

heroin after conducting an undercover “buy bust” operation. Id. at 552-53. At trial, Evans’s

attorney cross-examined the investigating detective concerning specific investigative

. techniques that the detective had not used, including the failure to capture the drug

transaction through the use of video or audio recording equipment. Id. at 562. This line of

cross-examination prompted the trial court to instruct the jury as follows:

During this trial, you have heard testimony of witnesses and may hear

argument of counsel that the State did not utilize a specific investigative

technique or scientific test. You may consider these facts in deciding whether

the State has met its burden of proof. You should consider all of the evidence

or lack of evidence in deciding whether a defendant is guilty. However, I

instruct you that there is no legal requirement that the State utilize any

specific investigative technique or scientific test to prove its case. Your

responsibility as jurors is to determine whether the State has proven, based

on the evidence, the defendants’ guilt beyond a reasonable doubt.

Id. Evans’s trial counsel did not object to the giving of this instruction. Id. at 564-65.

In his closing argument, Evans’s counsel highlighted the detective’s failure to

record the alleged transaction. See id. at 562-63. The co-defendant’s attorney echoed this

point in his closing argument, also noting the lack of forensic evidence: “You have a

situation where there are absolutely no scientific tests that implicate my client in any way.

There’s no audio. There’s no video. There’s no fingerprints. There is nothing.” Id. at

563-64.

On appeal, Evans argued that the instruction concerning specific investigative

techniques and scientific tests improperly relieved the State of its burden to prove his guilt

beyond a reasonable doubt. Id. at 562. Because Evans had failed to preserve this issue

through objection in the trial court, the Court of Special Appeals held that it was precluded

from considering it. Id. at 566. In dicta, the intermediate appellate court noted that the jury

instruction was a correct statement of the law and that it did not relieve the State of its

burden of proof. Id. at 570. However, the court “stress[ed] that the salutary effect of the

instruction is found in the advisement that the absence of such evidence should be factored

into the juror’s determination of whether the State has shouldered its burden if, and only if,

the absence of such evidence, itself, creates reasonable doubt.” Id. at 571. The court

continued: “The risk is greatest that such an instruction will run afoul of the prohibition

against relieving the State of its burden where the instruction is predominant in the overall

instructions and its relation to the reasonable doubt standard unclear.” Id. Thus, the court

advised, “the preferable practice is for the ... instruction to be promulgated in conjunction

with the explication of the State’s burden to prove the defendant guilty beyond a reasonable

doubt.” Id.

Between 2007 and 2011, no Maryland appellate court addressed the CSI effect in

the context of a jury instruction.2 In 2011, this Court considered such an instruction for the

first time in Atkins v. State, 421 Md. at 434. Atkins was charged with three counts of assault

after he was involved in an altercation during which he stabbed three people. See id. at

438-39. Three days after the incident, police executed a search warrant at Atkins’s home

and found a large, non-foldable “Rambo-type” knife in Atkins’s bedroom. Id. at 439, 439

n.3. Police did not perform any scientific or forensic tests on the knife, and there was no

witness testimony at trial linking that knife to the stabbings. Id. at 439. Nevertheless, the

2 As discussed below, in 2010 this Court considered a CSI-effect voir dire question

in Charles v. State, 414 Md. 726 (2010).

State told the jury in its opening statement that Atkins used the knife found in his bedroom

in the stabbings. Id. at 439, 439 n.4. During cross-examination of a detective who found

the knife in Atkins’s bedroom, defense counsel probed the lack of DNA testing conducted

on the knife. Id. at 440. In his defense case, Atkins testified that, as he was being punched

and kicked during the fight, he took a pocketknife out of his pocket, opened it, and swung

it at his attackers in self-defense. Id. at 438-39.

The trial court granted the State’s request for a CSI-effect jury instruction over

defense objection. The court instructed the jury:

During this trial, you have heard testimony of witnesses and may hear

argument of counsel that the State did not utilize a specific investigative

technique or scientific test. You may consider these facts in deciding whether

the State has met its burden of proof. You should consider all of the evidence

or lack of evidence in deciding whether the defendant is guilty. However, I

instruct you that there is no legal requirement that the State utilize any

specific investigative technique or scientific test to prove its case. Your

responsibility as jurors is to determine whether the State has proven based

upon the evidence the defendant’s guilt beyond a reasonable doubt.

Id. at 441-42 (emphasis omitted). The jury convicted Atkins of the assault charges, and the

Court of Special Appeals affirmed the convictions, discerning no error in the CSI-effect

jury instruction. See id. at 442.

This Court reversed, concluding that Atkins’s case was distinguishable from Evans.

We observed that, in Evans, the defense “distorted the law” through its extensive

cross-examination concerning the lack of video or audio evidence of the drug purchase, id.

at 451, and through its “robust and vehement closing argument” in which it improperly

suggested that the prosecution was required to produce such evidence. Id. at 450 (quoting

Evans, 174 Md. App. at 570). Whereas, in Evans, the defense’s cross-examination and

closing argument made a curative jury instruction proper, see id. at 450-51, in Atkins

defense counsel “merely pointed out” during cross-examination the lack of specific

forensic tests, which made a curative instruction unnecessary. Id. In addition, the

instruction in Evans was improper because it invaded the province of the jury, suggesting

the inferences they should draw from the State’s failure to test the recovered knife for DNA

evidence. Id. at 453-54. However, the Court stated that its “conclusion that the instruction

as given was invalid [was] based on the particular facts in this case,” and explained that it

was “not holding] that an investigative techniques instruction would never be proper.” Id.

at 454. Consistent with Evans, this Court observed that “the key to producing a valid jury

instruction is ensuring that the State is properly held to its burden, and any instruction

regarding what the State must produce in proving its case must be properly related to the

reasonable doubt standard.” Id.

A few months later, in Stabb v. State, this Court again considered a C Si-effect jury

instruction case, and again held that the giving of the instruction constituted reversible

error. 423 Md. at 471-72. Stabb was charged with a third-degree sex offense involving a

minor. See id. at 457. After the alleged assault was reported to law enforcement, the

authorities did not refer the victim for a Sexual Assault Forensics Exam (“SAFE”). Id. at

458-59. At trial, Stabb’s defense counsel “argued properly and without undue emphasis the

lack of corroborating physical evidence of the crime, and questioned [two detectives] as to

the likelihood of the existence of such evidence and why a SAFE was not performed, but

did not ‘harp’ impermissibly on the lack of physical evidence in its case-in-chief or during

closing arguments.” Id. at 471. Nevertheless, the trial court issued a preemptive CSI-effect

jury instruction. Id. at 471-72.

This Court held that the use of a preemptive CSI-effect instruction was improper,

again distinguishing Evans. See id., at 471: We noted that, after defense counsel’s

cross-examination of the detectives, “[t]he State responded, during recross-examination of

witnesses and in closing arguments, to defense counsel’s implication regarding the lack of

a SAFE, i.e., why a SAFE was not administered and the unlikelihood that a SAFE, had it

been administered, would have yielded testable DNA or fingerprints.” Id. at 472. We

observed that “[rjebuttal by the State was the proper approach.” Id. However, “[w]hen the

trial judge injected the pertinent instruction into the jury’s calculus, it. had more force and

effect than if merely presented by counsel, and could have influenced impermissibly the

drawing by the jury of inferences regarding the absence of physical evidence.” Id. (internal

quotation marks and citation omitted). We concluded:

In giving the “anti-CSI effect” instruction to the jury, the trial court directed

effectively the jurors not to consider the absence of a SAFE or corroborating

physical evidence. The trial court invaded impermissibly the province of the

jury deliberations with the given “anti-CSI effect” instruction under the

circumstances. The “anti-CSI effect” jury instruction given, in the

circumstances of this case, was improper because it relieved the State of its

burden to prove Stabb was guilty beyond a reasonable doubt, invaded the

province of the jury, and, thus, violated Stabb’s constitutional right to a fair

trial.

Id. We warned prosecutors that the use of a CSI-effect jury instruction is “fraught with the

potential for reversible error,” id. at 473, and advised that it should be “confined to

situations where it responds to correction of a preexisting overreaching by the defense, i.e.,

a curative instruction.” Id.

Most recently, this Court decided Taylor v. State, 473 Md. 205 (2021). In Taylor,

we held that the trial court erred by giving a CSI-effect jury instruction sua sponte in

anticipation of a potential defense objection. Id. at 222, 231. Taylor involved a

complicating factor: Although Taylor’s trial had occurred in 2008, no timely appeal was

filed on his behalf. Id. at 224. A post-conviction court granted Taylor relief in the form of

a belated appeal more than eight years later. Thus, the case came to this Court as a direct

appeal, rather than on collateral review. See id. at 224-25. One of the questions presented

to us in Taylor was which law to apply: the law as it existed in 2008 at the time of Taylor’s

trial (i.e., only the dicta from Evans) or the law as it existed at the time we were considering

his belated appeal (i.e., Atkins and Stabb). We did not reach this question, however, because

we held that either way the jury instruction in Taylor’s trial was improper. Id. at 233-34.

2. CSI-Effect Voir Dire Questions

An alternative iteration of the CSI effect emerged in Maryland courtrooms

concerning voir dire questions. In 2010 in Charles v. State, the State convicted two

defendants of second-degree murder and use of a handgun in the commission of a felony

or crime of violence. 414 Md. 726 (2010). During voir dire, over defense counsel’s

objection, the trial judge asked the jurors: “[I]f 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,

please rise.” Id. at 730 (emphasis deleted).

This Court held that the trial court erred by using non-neutral language that

suggested the only option was to convict the defendant, without mention of the option to

acquit. Id. at 738; see also McFadden v. State, 197 Md. App. 238, 250-51 (2011) (holding

non-neutral CSI-effect voir dire question deprived defendant of right to fair and impartial

jury), abrogated in part on other grounds by State v. Stringfellow, 425 Md. 461 (2012).

Charles did not focus on the appropriateness of the CSI-effect message when posed to the

jury pool during voir dire. Rather, it focused on the appropriateness of non-neutral language

in comments from the bench. See Charles, 414 Md. at 733.

In 2018, the Court of Special Appeals considered a CSI-effect voir dire question in

the context of an ineffective assistance of counsel claim. State v. Armstead, 235 Md. App.

392 (2018). After reflecting on Evans, Charles, Atkins, and Stabb, the intermediate

appellate court concluded that trial counsel’s failure to object to a CSI-effect voir dire

question did not amount to ineffective assistance of counsel. The Armstead Court reasoned

that, at the time of Armstead’s trial in 2009, CSI-effect voir dire was permissible, and

arguably even “favored,” under Maryland common law (presumably referring to Evans).

Id. at 406. That being the case, it could not be said that Armstead’s trial counsel fell short

of the professional norms that prevailed at the time. See id. at 417 (“It is unreasonable to

require trial counsel to see the change that remained beyond the horizon.”).

Equipped with an understanding of the development of CSI-effect case law in

Maryland, we turn now to the CSI-effect voir dire question that the trial court asked in the

present case.

B. McGhee’s Trial and the Contested Voir Dire Question

McGhee’s murder trial went forward in December 2007. During voir dire, the trial

court asked the potential jurors the following question related to the CSI effect:

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?

McGhee’s attorney did not object to this question.

After selection of the jurors, the State presented evidence that, on the evening of

March 17, 2007, Keith Dreher was killed by a gunshot to the head outside a Papa Johns

restaurant in Oxon Hill, Maryland.

Detective Paul Dougherty testified that after the shooting, the Assistant Manager of

the restaurant, Jerrone Joyner,3 gave a statement to him, in which Jerrone said that he saw

the shooter and the victim in the restaurant for approximately 20 minutes prior to the

shooting. He also told Detective Dougherty that he would be able to identify the shooter if

he were shown a picture of him. One month later, Detectives Andre Brooks and Michael

Delaney met with Jerrone and presented him a photo array. When Jerrone saw McGhee’s

photograph he asked, “[w]as that the guy?” Detective Delaney responded, “I couldn’t tell

you that. I wasn’t there.” The detectives testified that Jerrone then identified McGhee and

said he was “a hundred percent” certain that McGhee was the shooter.

Jerrone’s testimony at trial differed from that of Detectives Dougherty, Brooks, and

Delaney. Jerrone recalled giving a statement to Detective Dougherty the night of the

shooting, in which he described the shooter. He recalled telling Detective Dougherty that

it was possible he could identify the shooter, but he did not recall telling police that the

3 Because two of the witnesses share the last name Joyner, we will refer to them by

their first names. We mean no disrespect.

shooter was in the restaurant before the shooting. Additionally, while Jerrone remembered

identifying McGhee to police, he testified that he only did so because he “knew the other

guys” and did not know McGhee. He also disputed that he made the identification with

certainty. While acknowledging that he saw the barrel of the gun, he said that he did not

get a good look at the shooter and did not see the shooting.

Two other witnesses who were at the Papa Johns restaurant at the time of the

shooting - Shamell Joyner and Demetrius Young - knew McGhee personally. Shamell,

who was working at the Papa Johns on the night of the murder, testified that he saw

McGhee in the restaurant shortly before the shooting. He recalled hearing an argument

going on outside before the gunshot, but he did not know who was arguing or what the

argument was about.

Young testified that he was at the Papa Johns restaurant the night of the shooting

waiting for Shamell to get off work, when he saw McGhee enter the restaurant. Young saw

McGhee ask Dreher for a cigarette before Dreher went outside. He heard a gunshot two

minutes later.

On March 21, 2007, Shamell accompanied Detective Delaney to Martin Luther

King Elementary School in Washington, D.C., where he identified McGhee. After

members of the Prince George’s County Police Department warrant squad identified

themselves to McGhee as police, McGhee ran from them. Detective Wayne Martin saw

McGhee running into a wood line with a gun protruding from McGhee’s clothing. Martin

testified that he lost sight of McGhee for approximately 15 to 30 seconds during the chase.

A short time later, Martin apprehended McGhee. McGhee did not have a gun on his person

at that time.

An evidence technician for the Prince George’s County Police Department testified

that he recovered a loaded, “reasonably clean” sawed-off shotgun from underneath leaves

along a fence at the rear of the school on March 21, 2007. Although the gun was submitted

for DNA analysis, there was not sufficient genetic material on it from which to develop a

genetic profile. Similarly, latent fingerprints lifted from the weapon did not contain enough

characteristics for an examination to be conducted. However, Detective Martin testified

that the recovered firearm appeared to be the gun he saw in McGhee’s possession while

McGhee was running.

Susan Lee, a Prince George’s County Police Department firearms examiner,

testified that plastic wadding and shell fragments recovered from Dreher’s body were

consistent with material contained within the cartridges that were loaded in the shotgun at

the time it was recovered on March 21; however, she could not conclude that the recovered

shotgun was the murder weapon.

Finally, the State presented evidence of incriminating statements McGhee made to

police officers on April 5,2007. Detective Delaney testified that, in the course of McGhee’s

swabbing for DNA on that date, he asked McGhee if he had an attorney. According to

Delaney, McGhee said his family would be wasting their money on an attorney because

the police had the “pump.” Delaney understood this to mean a sawed-off shotgun.

Additionally, Delaney testified that McGhee asked about cooperating with the

investigation and that Delaney said he could not make any promises.

McGhee presented an alibi witness, Dayontae Duncan, who testified that McGhee

was with him at a party on the evening of the shooting and that they spent the night at

Duncan’s home. McGhee also testified that he was with Duncan at the time of the shooting

and was not at the Papa Johns restaurant that night. He testified that he ran from the police

on March 21, 2007, because police had “been coming around our neighborhood harassing

young dudes because of the colors we wear,” and he suspected police thought he was

affiliated with a gang. He admitted telling police at the time of the DNA swabbing that he

thought his family was hiring an attorney, but he denied saying the attorney was a waste of

money because the police had “the pump,” and he denied making any other statements to

police during that interaction.

The jury found McGhee guilty of first-degree murder, and he was sentenced to life

in prison on January 18, 2008. The Court of Special Appeals affirmed McGhee’s

conviction on direct appeal, McGhee v. State, Sept. Term, 2007, No. 2827, and this Court

denied McGhee’s petition for certiorari. McGhee v. State, 410 Md. 561 (2009).

C. Post-Conviction Proceeding

On June 10,2014, McGhee filed a pro se petition for post-conviction relief. Defense

counsel later supplemented this petition with additional issues. McGhee contended that he

received ineffective assistance of counsel based on:

1. trial counsel’s failure to object to the trial court’s “CSI-effect” voir

dire question;

2. appellate counsel’s failure to raise the preserved issue that the trial

court erred in admitting testimony about inconclusive forensic

evidence; and

3. trial counsel’s failure to object to incomplete or missing jury

instructions.

The post-conviction court held a hearing, at which McGhee’s trial counsel testified.

She explained that “[t]he defense in this case was that Mr. McGhee was not the shooter in

the incident, that he was not present at the place and time in which the decedent was killed.”

Trial counsel did not recall the CSI-effect voir dire question.

On June 11, 2020, the post-conviction court granted McGhee’s petition for

post-conviction relief and ordered a new trial. The court stated that “[although at the time

of [McGhee’s] trial, the CSI question was allowed, the Court believes the question must

still be analyzed based on its prejudicial effect on the jury.” The post-conviction court

found that, in this case, the lack of scientific evidence was material to the question of

McGhee’s guilt. For this reason, the court held that the failure to object to the CSI-effect

question constituted ineffective assistance of counsel. The post-conviction court also

determined that McGhee’s trial counsel provided ineffective assistance by failing to object

to certain incomplete or missing jury instructions. The court held that McGhee’s appellate

counsel was not ineffective.

The Court of Special Appeals reversed the post-conviction court’s decision with

respect to McGhee’s trial counsel in an unreported opinion. State v. McGhee, Sept. Term

2020, No. 638 (Md. Ct. Spec. App. Nov. 30, 2021). The intermediate appellate court

reasoned:

As in Armstead, appellee 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. Consequently, we conclude that trial

counsel’s failure to object to the trial court’s “CSI effect” voir dire question

in this case was not deficient performance.

Slip op. at 12. The Court of Special Appeals also held that the post-conviction court erred

in alternatively granting relief to McGhee based on trial counsel’s failure to object to

missing or incomplete jury instructions. Id. at 13-26.

McGhee petitioned this Court for a writ of certiorari, which this Court granted on

March 8, 2022. McGhee v. State, 478 Md. 187 (2022). McGhee presents the following

questions for our review, which we have rephrased slightly:4

1. Do Charles v. State, 414 Md. 726 (2010), Atkins v. State, 421 Md. 434

(2011), and Stabb v. State, 423 Md. 454 (2011), which concern the

propriety of CSI-effect voir dire questions and jury instructions, apply to

cases that became final before those decisions were issued?

2. Did McGhee’s trial counsel render ineffective assistance of counsel

when, at McGhee’s 2007 trial, she failed to object to a CSI-effect voir

dire question?

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 I” Wallace v. State, 475 Md. 639, 653 (2021) (quoting State v. Syed, 463

Md. 60, 73 (2019)).

4 McGhee did not seek further review of the portion of the Court of Special Appeals’

opinion which held that trial counsel’s failure to object with respect to several jury

instructions did not constitute ineffective assistance of counsel. Therefore, we consider

only whether counsel’s failure to object to the CSI-effect voir dire question violated

McGhee’s right to effective assistance of counsel.

Ill

Discussion

The Sixth Amendment to the United States Constitution and Article 21 of the

Maryland Declaration of Rights guarantee criminal defendants the right to “effective

assistance of counsel.” Strickland v. Washington, 466 U.S. at 686 (internal quotation marks

and citation omitted); Taylor v. State, 428 Md. 386, 399 (2012). To meet their burden on

an ineffective assistance of counsel claim, a petitioner must make two showings. First, the

petitioner “must show that counsel’s performance was deficient. This requires showing that

counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed

the defendant by the Sixth Amendment. Second, the defendant must show that the deficient

performance prejudiced the defense.” Taylor, 428 Md. at 399 (quoting Strickland, 466 U.S.

at 687).

Under the first, “performance” prong, a defendant must show that “counsel’s alleged

acts or omissions, ... ‘viewed as of the time of counsel’s conduct,’ fell ‘outside the wide

range of professionally competent assistance. ’” Taylor, 428 Md. at 399 (quoting Strickland,

466 U.S. at 690). Under the second, “prejudice” 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.” Id. at 399-400 (quoting Strickland, 466 U.S. at

694).

McGhee argues that his trial counsel’s failure to object to a CSI-effect voir dire

question violated both the performance prong and prejudice prong of the Strickland test.

McGhee contends that Charles, Atkins, and Stahb apply retroactively to cases on collateral

review. According to McGhee, with the benefit of the Atkins/Charles/Stabb trilogy of

CSI-effect cases, it is clear both that his counsel’s failure to object to the CSI-effect voir

dire question was deficient performance and that this error prejudiced him because an

appellate court would have reversed his conviction under Charles, Atkins, and Stabb.

McGhee alternatively argues that, even if the Court considers only the CSI-effect case law

that existed at the time of his trial - i.e., Evans - his counsel should have extrapolated from

Evans that it was necessary to object to the CSI-effect voir dire question that the trial court

put to the potential jurors.

The State argues that McGhee’s retroactivity argument is incompatible with an

analysis of the performance prong under Strickland, which requires a reviewing court to

consider counsel’s acts or omissions at the time of the contested conduct, not with the

benefit of hindsight. According to the State, that analysis leads to the conclusion that

McGhee’s trial counsel acted consistently with the professional norms that existed at the

time of McGhee’s trial in late 2007.

We agree with the State.

A. The Issue of Retroactivity

The retroactivity doctrine in criminal law considers whether a change in law should

be applied to a conviction that occurred before the change. See Wiggins v. State, 275 Md.

689, 698-99 (1975) (describing the “genesis of the modem retroactivity doctrine”). When

confronted with a question of whether a new case applies retroactively, this Court’s

precedent considers whether a new decision sets out a “new principle of law.” State v.

Daughtry, 419 Md. 35, 78 (2011) (quoting Houghton v. Cnty. Comm ’rs ofKent Cnty., 307

Md. 216, 220 (1986)); Denisyuk v. State, 422 Md. 462 (2011), abrogated on other grounds

by Miller v. State, 435 Md. 174 (2013). When the decision announces a new principle of

law, it does not necessarily apply retroactively. See Daughtry, 419 Md. at 78. In contrast,

“where a decision has applied settled precedent to new and different factual situations, the

decision always applies retroactively.” Potts v. State, 300 Md. 567, 577 (1984) (citation

omitted).

The Supreme Court has not explicitly addressed whether the principle of

retroactivity may be applied within an ineffective assistance of counsel claim, such that a

new rule of law would render counsel’s conduct defective even if the conduct was

reasonable and appropriate at the time. McGhee asks this Court to dive into the substance

of this analysis and determine whetherCharles, Atkins, and Stabb applied settled precedent

to new facts or announced a new principle of law. Thus, McGhee implicitly asks this Court

to conclude that such an application of retroactivity principles is compatible with a

Strickland analysis. For the reasons set out below, we conclude it is not.

Strickland's performance prong requires this Court to assess trial counsel’s

performance based on prevailing professional norms at the time of the contested conduct.

Strickland, 466 U.S. at 689-90. At the outset, this appears incompatible with the notion of

retroactivity.

McGhee disclaims that he is asking this Court to judge his trial counsel’s conduct

based on future case law. Instead, McGhee suggests the practical effect of applying these

cases retroactively in an ineffective assistance of counsel claim is only that a

post-conviction court can assume the direct appeal would have been successful. Applied

here, McGhee argues, the Court of Special Appeals on direct review of McGhee’s

conviction would have held that the failure to object to a CSI-effect voir dire question was

reversible error, had it had the benefit of Charles, Atkins, and Stabb. It necessarily follows

(according to McGhee) that his counsel provided constitutionally deficient performance.

McGhee’s argument thus verges into the second Strickland prong, the prejudice

prong. McGhee argues this is appropriate when evaluating trial counsel’s failure to

preserve an issue for appeal. In such a situation, the “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.” Gross v. State, 371 Md. 334, 350 (2002).

However, it does not follow from Gross that we consider “the viability of the

omitted claims” based on case law that did not exist at the time of the attorney’s challenged

performance. To the contrary, doing so is inconsistent with Strickland. McGhee has

identified no post-Strickland precedent of the Supreme Court or this Court that would

countenance such an application of the Strickland test.

The Supreme Court’s decision inLockhartv. Fretwell, 506 U.S. 364 (1993), informs

our analysis. In Fretwell, a defendant received a death sentence based on an aggravating

circumstance (murder committed for pecuniary gain), id. at 366, which was improper under

then-existing law because the aggravating circumstance was also an element of the

underlying crime. Collins v. Lockhart, 754 F.2d 258, 265 (8th Cir. 1985) (holding such

“double counting” was impermissible), overruled in Perry v. Lockhart, 871 F.2d 1384 (8th

Cir. 1989). By the time the defendant brought his habeas corpus petition alleging

ineffective assistance of counsel, Collins had been overruled by Perry. Fretwell, 506 U.S.

at 368. Thus, the Supreme Court considered which law the federal district court should

have applied to an ineffective assistance of counsel claim on collateral review: the law as

it existed at the time of Fretwell’s trial (Collins) or the law as it existed when Fretwell’s

post-conviction petition was filed (Perry). Notably, the parties had agreed that trial

counsel’s conduct was deficient under Strickland's performance prong, so the Court’s

inquiry was focused solely on the prejudice prong. Id. at 369 n.l.

The Supreme Court held that defense counsel’s failure to object to the pecuniary

gain aggravating factor did not prejudice the defendant, even if the objection would have

been meritorious at the time of the trial and direct appeal. The Court distinguished between

the performance and prejudice prongs of the Strickland test for purposes of its analysis:

Respondent argues that the use of hindsight is inappropriate in

determining “prejudice”, under Strickland, and that this element should be

determined under the laws existing at the time of trial. For support, he relies

upon language used in Strickland in discussing the first part of the necessary

showing—deficient performance. We held that in order to determine whether

counsel performed below the level expected from a reasonably competent

attorney, it is necessary to “judge ... counsel’s challenged conduct on the

facts of the particular case, viewed as of the time of counsel’s conduct.”

Strickland, 466 U.S. at 690, 104 S.Ct. at 2066.

Ineffective-assistance-of-counsel claims will be raised only in those

cases where a defendant has been found guilty of the offense charged, and

from the perspective of hindsight there is a natural tendency to speculate as

to whether a different trial strategy might have been more successful. We

adopted the rule of contemporary assessment of counsel’s conduct because a

more rigid requirement “could dampen the ardor and impair the

independence of defense counsel, discourage the acceptance of assigned

cases, and undermine the trust between attorney and client.” Ibid. But the

“prejudice” component of the Strickland test does not implicate these

concerns. It focuses on the question whether counsel’s deficient performance

renders the result of the trial unreliable or the proceeding fundamentally

unfair. Unreliability or unfairness does not result if the ineffectiveness of

counsel does not deprive the defendant of any substantive or procedural right

to which the law entitles him. As we have noted, it was the premise of our

grant in this case that Perry was correctly decided, i. e., that respondent was

not entitled to an objection based on “double counting.” Respondent

therefore suffered no prejudice from his counsel’s deficient performance.

Id. at 371-72 (citation omitted). The Fretwell Court’s reiteration of the importance of

contemporaneous assessment of counsel’s conduct under the performance prong is

significant. See also Williams v. Taylor, 529 U.S. 362, 391 (2000) (observing that Fretwell

did not “modif[y] or in some way supplant[] the rule set down in Strickland”).

McGhee relies on dicta in Allen v. State, 204 Md. App. 701 (2012), to support the

applicability of a retroactivity analysis in this context. The Allen Court considered whether

the Atkins and Stabb holdings applied to cases that were pending on direct appeal at the

time Atkins and Stabb were decided. Id. at 706. The intermediate appellate court answered

this question affirmatively. Id. at 721-22. McGhee focuses on dicta in Allen which

suggested - based on Denisyuk - that Atkins and Stabb also would apply retroactively to

cases on collateral review:

In Denisyuk, a post conviction appeal, the Court of Appeals concluded

that the Supreme Court’s decision in Padilla v. Kentucky,---- U.S.-----, 130

S.Ct. 1473, 176 L.Ed.2d 284 (2010), that defense counsel is constitutionally

ineffective by failing to advise a criminal defendant that deportation is a

likely consequence of a guilty pleas, applied settled principles to new factual

situations, and thus, it applied to convictions that were final. 422 Md. at

481-82, 30 A.3d 914.... The Denisyuk analysis and result appears to be

applicable to Atkins and Stabb.

Id. at 723.

We disagree with this dictum in Allen to the extent it might be thought to apply to

an ineffective assistance of counsel claim. The potential application of Charles, Atkins, and

Stabb retroactively is inconsistent with a proper analysis under Strickland's performance

prong. Adopting McGhee’s argument, in practice, would require attorneys not only to

comply with prevailing professional norms of the time, but also to predict future

developments in case law. Neither the Sixth Amendment of the United States Constitution

nor Article 21 of the Maryland Declaration of Rights imposes such a requirement on

counsel. See, e.g., Strickland, 466 U.S. at 690; State v. Calhoun, 306 Md. 692, 735 (1986)

(“There was no duty on counsel to foresee that we might hold as we held in [future]

case[s].”); State v. Davis, 249 Md. App. 217, 230 (2021) (post-conviction court erred in

applying this Court’s 2014 holding in Pearson v. State, 437 Md. 350 (2014), retroactively

when assessing trial counsel’s performance in 2007); Toledo v. United States, 581 F.3d

678, 681 (8th Cir. 2009) (“Counsel is not accountable for unknown future changes in the

law.”). We do not read Denisyuk as holding otherwise.5 Accordingly, we decline McGhee’s

request to apply Charles, Atkins, and Stabb in assessing the performance prong of

McGhee’s ineffective assistance of counsel claim.6

5 Notably, this Court abrogated Denisyuk in Miller v. State, 435 Md.

174 (2013),

following the Supreme Court’s holding in Chaidez v. United States, 568 U.S. 342 (2013),

that Padilla v. Kentucky does not apply retroactively to cases on collateral review. In any

event, we agree with the analysis of Denisyuk that the State provided in its brief: “The issue

in Denisyuk was not that defense counsel should have predicted Padilla's holding about

what constitutes ineffective assistance - it was that defense counsel should have known

that Denisyuk’s plea would subject him to deportation under statutory law that was

perfectly clear at the time of the plea.... [Denisyuk] does not involve whether counsel is

ineffective for failing to predict future legal developments.”

6 Because we conclude that a retroactivity analysis is inapplicable in this context,

we do not decide whether Charles, Atkins, and Stabb articulated a new principle of law or

applied settled precedent to new facts.

B. Application of the Strickland Test to Trial Counsel’s Failure to Object to the

CSI-Effect Voir Dire Question at McGhee’s Trial

The right to effective assistance of counsel aims to ensure a fair trial. As such, 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.” Strickland, 466 U.S. at 686.

The petitioner bears the burden to overcome the presumption of effective assistance

of counsel by satisfying both prongs of the Strickland test. Failure to prove either of the

two Strickland prongs is fatal to the claim. State v. Syed, 463 Md. 60, 75 (2019) (citing

Strickland, 466 U.S. at 687). As explained below, we hold that McGhee failed to meet his

burden to prove that his trial counsel’s failure to object to a CSI-effect voir dire question

in 2007 fell below an objective standard of reasonableness. Because McGhee has not

satisfied the first prong of the Strickland test, we decline to address the question of

prejudice.

When scrutinizing counsel’s conduct, “a court must indulge a strong presumption

that counsel’s conduct falls within the wide range of reasonable professional assistance.”

Strickland, 466 U.S. at 689. A “fair assessment of attorney performance requires” a court

to “reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the

conduct from counsel’s perspective at the time,” considering all the surrounding

circumstances. Newton v. State, 455 Md. 341, 355 (2017) (quoting Strickland, 466 U.S. at

689). In conducting this analysis, the court “must be highly deferential” and take care to

avoid “the distorting effects of hindsight.” Strickland, 466 U.S. at 689.

As McGhee bears the burden to overcome the presumption of reasonableness, we

now consider the arguments and evidence he presented: (1) that any reasonable attorney

should have extrapolated from Evans the need to object to a CSI-effect voir dire question;

(2) that McGhee’s trial counsel acted contrary to her express trial strategy; and (3) that

other objective indicia indicate counsel’s conduct was objectively unreasonable. We

conclude that, under the totality of the circumstances, McGhee has failed to meet his

burden to overcome the presumption of effective assistance of counsel.

1. Case Law in 2007

First, McGhee directs our attention to the only reported opinion at the time of

McGhee’s trial in 2007, Evans v. State.1 As discussed above, in Evans the Court of Special

Appeals in dicta discerned no error in the trial court’s instruction to the jury that “there is

no legal requirement that the State utilize any specific investigative technique or scientific

test to prove its case.” Evans, 174 Md. App. at 562, 570. This opinion, notably, did not use

the phrase “CSI effect.” Yet McGhee contends that any reasonable attorney should have

extrapolated from Evans that they were required to object to a CSI-effect voir dire question.

We disagree.

In order to satisfy McGhee’s standard of objectively reasonable representation, an

attorney in December 2007 would have to have been familiar with the budding controversy

surrounding CSI-effect jury instructions. They would have to have been aware of the one

Court of Special Appeals opinion from May 2007 that touched on the CSI effect, but

7 The Court of Special Appeals issued its opinion in Evans on May 3, 2007.

McGhee’s trial occurred in December 2007.

without referring to it as the “CSI effect.” Assuming they were familiar with the Evans

opinion, the attorney would have to have looked past the fact that the Evans Court upheld

the CSI-effect jury instruction in that case. They also would have to have looked past the

fact that the intermediate appellate court’s discussion of this issue was dicta. From there,

they would have to have extrapolated that dicta related to jury instructions also applied to

voir dire questions. We do not believe it is reasonable to expect an attorney in December

2007 to have made all of these connections.

However, McGhee notes that defense counsel in Charles objected to a similar voir

dire question in a trial that occurred at approximately the same time as McGhee’s trial.

McGhee contends that his trial counsel therefore should have known to object as well.

While Charles’s attorney apparently had the knowledge and foresight in December 2007

to object to a CSI-effect voir dire question, we are not prepared to say that dicta in Evans

set a “prevailing professional norm,” such that the failure to object rendered McGhee’s

counsel’s performance constitutionally deficient in late 2007. As the Court of Special

Appeals noted in Armstead, merely showing that some attorneys were objecting and others

were not does not establish a prevailing professional norm. See Armstead, 235 Md. App.

at 422-23.

The logical conclusion of McGhee’s argument is that any attorney who failed to

object to a CSI-effect message between the time Evans was decided in 2007 and 2010,

when this Court decided Atkins, provided constitutionally deficient representation.

McGhee attempts to avoid this “floodgate” effect by pointing this Court to McGhee’s

post-conviction hearing, in which his trial counsel testified about her trial strategy. We

consider this argument next.

2. Trial Counsel’s Strategy

During the post-conviction hearing, McGhee’s trial counsel testified that the defense

at trial was that “Mr. McGhee was not the shooter in the incident, that he was not present

at the place and time in which the decedent was killed.” McGhee contends it was clear that

a voir dire question that insinuated the State need not present forensic evidence to obtain a

conviction undermined his defense counsel’s express trial strategy. Thus, McGhee argues,

even if it was not generally a professional norm at the time to object to a CSI-effect voir

dire question, his attorney should have recognized that the CSI-effect voir dire question the

trial court put to McGhee’s potential jurors might prejudice McGhee.

However, trial counsel’s theory of the case that McGhee was not the perpetrator

does not change matters. Trial counsel’s testimony at the post-conviction hearing does not

overcome the presumption that her conduct fell within “the wide range of professionally

competent assistance.” Strickland, 466 U.S. at 689. As discussed above, Evans would have

led a reasonably competent attorney to believe that an objection to the voir dire question at

issue would not have been meritorious. See Armstead, 235 Md. App. at 406 (explaining

that, at the time of Armstead’s trial in 2009, CSI-effect voir dire was permissible, and

arguably even “favored,” under Maryland law). 8

At oral argument, McGhee contended that counsel’s objection to a jury instruction

concerning specific investigative techniques demonstrates that she knew or should have

known CSI-effect messages were problematic in voir dire. However, counsel objected to

the specific investigative techniques jury instruction not based on the contention that it

In response, McGhee argues that, separate and apart from Evans, other objective

indicia lead to the conclusion that a reasonably competent attorney in 2007 should have

known to object to a CSI-effect voir dire question. We now consider that contention.

3. Other Objective Indicia

Although there were no Maryland cases in 2007 that .would have suggested that

CSI-effect voir dire questions were inappropriate, McGhee may attempt to meet his burden

to show that his counsel’s performance violated professional norms by directing our

attention to other sources, such as news articles and scholarly articles, to the extent such

sources shed light on the general consciousness of defense counsel in 2007. In Charles,

this Court conducted a review of the state of literature and case law related to the CSI effect

in and around 2007. 414 Md. at 731-32. Of the articles the Charles Court located, only one

law review article and two news articles were published before McGhee’s trial. See Cynthia

Di Pasquale, Beyond the Smoking Gun, The Daily Rec. (Sept. 7, 2006), available at

https://perma.cc/Y2G8-LX52 (noting a potential danger to prosecutors, while observing

that “[djefense attorneys don’t seem to know what all the fuss is about”); Andrew P.

Thomas, The CSI Effect: Fact or Fiction, 115 YALE L.J. POCKET PART 70 (2006)

(advocating that “judges acknowledge the CSI effect and take steps during voir dire to

prevent biased jurors from improperly influencing the jury”); Jeffrey Toobin, The CSI

would relieve the State of its burden of proof, but rather because the trial court had ruled

that the State would be permitted to introduce expert testimony concerning DNA evidence,

and therefore the instruction was not warranted under the circumstances.

Effect: The Truth About Forensic Science, The New Yorker (May 7, 2007), available at

https://perma.cc/2NCV-U2EJ (criticizing forensic inductive sciences in general).

These articles do little to advance McGhee’s argument. First, they show that

Maryland defense attorneys in 2006 did not view the CSI effect as a problem, as they did

not “seem to know what all the fuss [was] about.” Second, if the CSI effect was generally

known to any extent, it was understood to be a phenomenon that harms prosecutors, not

defendants.

The Court of Special Appeals concluded in Armstead that it was not a prevailing

professional norm at the time of Armstead’s trial in March 2009 to object to CSI-effect

voir dire questions. We find Armstead’s reasoning on this point to be persuasive. It follows

that it was not a professional norm to object to a CSI-effect voir dire question when

McGhee went to trial in December 2007, 15 months earlier.

In sum, we conclude that McGhee’s couhsel performed within the accepted

professional norms of 2007, which did not require objecting to the CSI-effect voir dire

question in this case. Thus, McGhee’s claim of ineffective assistance of counsel fails on

the performance prong, and we need not address McGhee’s arguments concerning the

prejudice prong.

Conclusion

Because McGhee’s trial occurred in December 2007, we do not assess his counsel’s

performance under Charles, Atkins, and Stabb, which were all decided in the years that

followed. McGhee failed to demonstrate that, under the professional norms that existed at

the time of his trial, his attorney provided constitutionally deficient representation by

failing to object to a CSI-effect voir dire question. Thus, the post-conviction court erred in

determining that McGhee received ineffective assistance of counsel.

JUDGMENT OF THE COURT OF

SPECIAL APPEALS AFFIRMED; COSTS

TO BE PAID BY PETITIONER.

Court of Special Appe;

Gregory Hilt

11/30/2021 12:141

Circuit Court for Prince George’s County

Case No.: CT071096X

UNREPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 638

September Term, 2020

STATE OF MARYLAND

ANTONIO MCGHEE

Friedman,

Wells,

Eyler, James R.

(Senior Judge, Specially Assigned),

JJ.

Opinion by Eyler, James R., J.

Filed: November 30,*2021

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other

document filed in this Court or any other Maryland Court as either precedent within the

rule of stare decisis or as persuasive authority. Md. Rule 1-104.

' *

-Unreported Opinion-

Following a December 2007 trial in the Circuit Court for Prince George’s County,

a jury found Antonio McGhee, appellee, guilty of first-degree murder. On January 8,2008,

the court sentenced appellee to life imprisonment. Appellee appealed to this Court, which

affirmed the judgments of the circuit court. McGhee v. State, No. 2827, Sept. Term 2007

(filed June.23,2009).

Thereafter, appellee filed a petition for post-conviction relief under the Maryland

Uniform Postconviction Procedure Act, seeking to vacate his convictions. In his petition,

appellee alleged two instances in which he had been denied his right to effective assistance

of trial counsel: first, in failing to object to what has become known as a “CSI effect” voir

dire question asked during juror selection; and second, for failing to object to missing or

incomplete jury instructions.

On June 11, 2020, the post-conviction court, after holding a hearing on the petition,

filed a memorandum opinion and order finding both of appellee’s claims meritorious and

granting post-conviction relief in the form of a new trial. The State then sought leave to

appeal from the post-conviction court’s judgment in this Court, which we granted.1 We

then transferred the case to our regular appellate docket. State v. McGhee, CSA-ALA0473-2020.

In this appeal, the State of Maryland, appellant, raises two issues, which we have

In his petition for post-conviction relief, appellee also raised a claim that he had

been denied his right to effective assistance of appellate counsel for not raising a preserved

issue on direct appeal of his conviction. Because the post-conviction court declined to grant

appellee relief on that issue, the propriety of that ruling was not contained in the State’s

application for leave to appeal; therefore, it is not before us.

-Unreported Opinion

'll

rephrased:

Did the post-conviction court err in concluding that appellee was

denied his right to effective assistance of trial counsel when his trial

counsel failed to object when the trial court asked a “CSI-effect” voir

dire question during jury selection?

Did the post-conviction court err in concluding that appellee was

denied his right to effective assistance of trial counsel when his trial

counsel failed to object to missing or incomplete jury instructions?

For the reasons set forth below, we answer these questions in the affirmative, and

therefore, we shall reverse the judgment of the circuit court.

FACTUAL BACKGROUND

On the evening of March 17, 2007, Keith Dreher, the victim, was shot and killed by

a single sawed-off shotgun blast to the head while standing outside of a pizzeria smoking

a cigarette.

Jerrone Joyner (Jerrone2), who, at the time of the shooting was the assistant manager

of the pizzeria, testified at trial that he was outside smoking a cigarette with the victim

when he heard a “chit chit,” which sounded to him like a gun. He looked up, saw what

appeared to him to be a “sawed off,” and heard someone say “empty your pockets.” Jerrone

testified that he then slowly walked back inside. Although he acknowledged that he

described the shooter to the police as between five feet seven to five feet nine inches tall,

wearing a black coat and blue jeans, dark skinned, with perhaps a goatee, he testified that

he did not, and could not, identify him. He also testified that he did not remember telling

the police that he saw appellee and the victim inside the pizzeria on the night of the

2 We refer to some of the witnesses by their first names for clarity.

-Unreported Opinion-

shooting. •

Detective Paul Dougherty testified at trial that he took a statement from Jerrone on

the day of the shooting. In that statement, which Jerrone signed, Jerrone said that both the

victim and 'appellee were in the restaurant for approximately 20 minutes prior to the

shooting. In addition, the detective testified that Jerrone told him that, if the police could

show him a photograph of the shooter, “he would guarantee” that he could identify him.

Demetrius Young (Young) testified that he went to the pizzeria on the night of the

shooting to meet Shamell Joyner (Shamell) to go to a: party. He said that he saw appellee,

who he. knew as “Dip,” ask the victim for a cigarette, who said “he ain’t had none.” The

victim then left the pizzeria and “Dip” followed him. About two minutes later, Young heard

what he believed to be a gunshot.

Shamell was at work making pizzas at the time of the shooting. He testified that he

saw appellee, who he also knew as “Dip,” in the pizzeria that night. He heard an argument

in the pizzeria and testified that a “gunshot went off[, w]e turned around, saw there was

blood[, t]hat’s all I know.” Four days after the shooting, on March 21, 2007, Shamell

accompanied Detective Michael Delaney to an elementary school and pointed out “Dip”

to the detective.

Several other police officers responded to the elementary school at Detective

Delaney’s request for assistance in apprehending appellee. When two plain-clothes police

officers with their badges around their necks identified themselves to appellee and his

companion, and asked them to talk, appellee ran. The police officers radioed this

information to Detective Delaney.

-Unreported Opinion-

Detective Wayne Martin overheard on the radio that appellee had fled and testified

that he gave chase when he saw appellee running. He also said that he saw a gun protruding

from appellee’s clothing. When appellee was eventually apprehended and searched, there

was no gun. The police searched the area and found a sawed-off shotgun on the ground in

a wooded area behind the elementary school where appellee had been seen running.

Detective Martin testified that the shotgun “appeared to be the same gun” that he had seen

protruding from appellee’s clothing.

Susan Lee, a firearms examiner, testified that the firearm recovered by the police, a

bolt-action 20-gauge shotgun, was operable. The shotgun had two unspent shells in its

magazine. She explained that she took apart the unspent shells to examine the shot pellets

and wadding. In her opinion, the wadding and shot pellets recovered from the victim’s head

during an autopsy were consistent in their design and construction with the wadding and

shot pellets she found inside the shotgun shells that she disassembled. Moreover, the

wadding recovered from the autopsy was consistent with 20-gauge wadding. Because no

fired shells were found at the scene of the shooting, the firearms examiner could not

positively state that the shotgun recovered by police after they chased appellee was the one

used in the shooting.

After appellee was arrested, the police photographed him and created a

photographic array. A month after the shooting, on April 17, 2007, police detectives

showed the photographic array to Jerrone who selected appellee’s photograph and,

according to Detective Andre Brooks, said “I’m a hundred percent that’s the one who shot

the victim.” Detective Delaney said that, before selecting appellee’s photograph, Jerrone

-Unreported OpinionK

asked “was that the guy,” to. which the Detective responded, “I couldn’t tell you that. I

wasn’t there.” Then Jerrone said “that’s him[, tjhat’s the guy that did it.” At trial, Jerrone

testified that he only selected appellee’s photograph because appellee was the only person

in the array that he did not recognize. He also testified that he never told the police that

appellee was the shooter. In fact, Jerrone testified that he “never seen nobody shoot

nobody.” •

Detective Delaney testified that, on April 5, 2007, he, along with another police

detective, visited appellee in the detention center to execute a court ordered DNA search

warrant on appellee. After Detective Delaney asked appellee whether he had an attorney,

appellee responded that he believed that his family had retained an attorney, but he thought

“they would be wasting their money because [the police] got the pump.”3 Detective

Delaney testified that he believed that the “pump” was a reference to the sawed-off shotgun

that the police recovered after the chase that resulted in appellee’s arrest.

: The State also presented evidence that the shotgun had been inspected'for

fingerprints and DNA. Mark Danus, a forensic analyst, testified at trial that there was not

enough DNA on the shotgun to do a genetic profile, and Mertina Davis, a fingerprint

specialist, testified at trial that the fingerprints recovered from the shotgun were not usable.

Dayontae Duncan (Duncan) testified for the defense that he knew appellee from the

3 This statement of appellee was Suppressed prior to trial because of a Miranda

violation. However, after appellee testified inconsistently with the statement on direct

examination, the State called the detective as a rebuttal witness to testify to appellee’s prior

statement to impeach appellee’s credibility. A statement obtained by a Miranda violation

may be used as impeachment evidence. Harris v. New York, 401 U.S. 222 (1971).

-Unreported Opinion

neighborhood and was with appellee on the night of the shooting. According to Duncan,

he met appellee and several others at a party around 7:45 p.m. on March 17, 2007. The

group remained at the party for approximately , two and a half hours. Appellee then

accompanied Duncan back to Duncan’s house where the two went to bed. Duncan testified

that'appellee went to bed early because he had a toothache. On cross-examination, Duncan

testified that his brother had called him the day after the shooting and reported that appellee

had been “apprehended with a gun.” He also testified that he was not asked to. be an alibi

witness until seven months after the shooting.

'■

Appellee testified in his own defense that, on the evening of the shooting, he was

playing basketball with friends when someone called one of his friends and toldTurnabout

a party. The group then met Duncan at the party a little before 8 p.m. where they “chilled

.. for a Tittle while,!,.ate some food and then ... left.” Appellee testified that he went, to

Duncan’s house after the party. Regarding his arrest a few days later, appellee testified that

he did not have a gun on him when he ran from the police. In addition he said that he ran

from the police “[b]ecause recently in the past times around the neighborhood, the police

have been coming around our neighborhood harassing young dudes because of the colors

we wear, and I had on blue that day[,] I guess they think we are in gangs.” On crossexamination, however, he testified that he ran from the police because he did not know

who they were at first, did not see their badges hanging around their necks, and did not

hear them announce themselves as police officers. He denied making any statement to the

effect that his family was wasting its money on a lawyer because the police had the “pump.”

Lastly, appellee denied going to the pizzeria where the shooting took place on March 17,

-Unreported Opinion*

2007. .

DISCUSSION

In State v. Smith, 223 Md. App. 16,26-27 (2015), this Court set forth the applicable

standard for reviewing claims of ineffective assistance of counsel on appeal from, a grant

of post-conviction relief:

• ’ •

The Sixth Amendment to the United States Constitution guarantees

all criminal defendants the right to the assistance of counsel. Strickland v.

Washington, 466'U.S. 668, 684-85 (1984). Both the United States Supreme

Court and the Court of Appeals have recognized that “the right to counsel is

the right to the effective assistance of counsel.” McMann v. Richardson, 397

U.S. 759, 771 n. 14 (1970); Mosley v. State, 378 Md. 548, 557 (2003). In

order to prevail on a claim of ineffective assistance of counsel, a defendant

must establish that trial counsel’s performance was constitutionally deficient

and that the deficient performance prejudiced the defense. Strickland, 466

U.S. at 687; Mosley, 378 Md. at 557.

In discerning whether counsel’s performance was deficient, we start

With the presumption that he or she “rendered adequate assistance and made

all significant decisions in the exercise of reasonable professional judgment.”

Strickland, 466 U.S. at 690; Bowers v. State, 320 Md. 416, 421 (1990). Our

review of counsel’s performance is “highly deferential.” Kulbicki v. State,

440 Md. 33, 46 (2014). We look to whether counsel’s “representation fell

below an objective standard of reasonableness.” Harris v. State, 303 Md.

685, 697 (1985). We assess reasonableness as of “the time of counsel’s

conduct.” Strickland, 466 U.S. at 690.

To satisfy the prejudice prong of Strickland, a defendant must show

that “there is a reasonable probability that, but for counsel’s unprofessional

' - errors, the result of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence in the

outcome.” Id. at 694. The ultimate inquiry is whether “‘counsel’s errors were

so serious as to deprive [the petitioner] of a fair trial, a trial whose result is

reliable,”’ Oken v. State, 343 Md. 256, 284 (1996) (quoting Strickland, 466 •

U.S. at 687).

Determinations by the post-conviction court regarding ineffective

assistance of counsel claims are mixed questions of law and fact. State v.

Purvey, 129 Md. App. 1, 10 (1999). We will not disturb the factual findings

-Unreported Opinion-

of the post-conviction court unless they are clearly erroneous. Evans v. State,

151 Md. App. 365,374 (2003); State v. Jones, 138 Md. App. 178,209 (2001).

We will make our own independent analysis, however, based on our own

judgment and application of the law to the facts, of whether the State violated

a Sixth Amendment right. Jones, 138 Md. App. at 209, Absent clear error,

we defer to the post-conviction court’s historical findings, but we conduct

our own review of the application of the law to the defendant’s claim of

ineffective assistance of counsel. Evans, 151 Md. App. at 374 (citing

Cirincione v. State, 119 Md. App. 471, 485 (1998)).

Thus, to prevail on a claim of ineffective assistance of counsel, a convicted

defendant must show both that counsel’s performance was deficient and that prejudice

resulted.

On the first day of appellee’s December 2007 trial, during jury selection, the trial

court asked, without objection, the following voir dire question:

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

fingerprint evidence, UNA, 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?

Such voir dire questions have been referred to as “CSI effect” questions and have

been rejected by this Court and the Court of Appeals.

In State v, Armstead, 235 Md. App. 392 (2018), in a petition: for post-conviction

relief, the defendant claimed that he was denied his right to effective assistance of counsel

when his trial counsel failed to object to a “CSI effect” voir dire question propounded

during his trial. The post-conviction court granted Armstead relief. This Court reversed the

post-conviction court’s grant of relief because it determined that Armstead had not

established that prevailing professional norms required his trial counsel to object to the voir

-Unreported Opinion-

dire question at the time of his March 2009 trial. Id; at 424-25.

In Armstead we recounted the history of the appellate decisions discussing the “CSI

effect,” .as follows:

A CSI effect jury message received its initial reported appellate

analysis in Maryland in Evans v. State, 174 Md. App. 549 (2007), which

involved a jury instruction. It re-surfaced next in the context of a voir dire

question in Drake & Charles v. State, 186 Md. App. 570 (2009), rev ’d sub

nom. Charles & Drake v. State, 414 Md. 726 (2010). Since then, the

implications of CSI effect jury messages have tasked repeatedly both of our

appellate courts to Consider the potential for prejudice on the minds ofjurors.

As relevant to this appeal, Stabb [v. State, 423 Md. 454, 472 (2011)]

and Atkins [v. State, 421 Md. 434 (2011)] (the present day standard-setters)

make clear, based on the “inconclusive state of the scholarly legal and/or

scientific research taken as a whole,” that Maryland disapproves of

preemptive anti-CSI messages to the venire or the empaneled jury. Stabb,.

423 Md. at 473 (to the extent that such an instruction is requested, its use

ought to be confined to situations where it responds, to correct pre-existing

overreaches by the defense, i.e., a curative instruction. The Court of Appeals

' may revisit: the appropriateness of CSI messages when tailoring an

“appropriate response through voir dire questions and/or jury instruction”

when a demonstration of scholarly research has become more abundant);

State v. Stringfellow, 425 Md. 461, 473-74 n. 4 (2012) (“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 erroneous to pose such

a question or instruction as a pre-emptive measure.” (emphasis added)).

There must be, at minimum, some form of relevant misstatement(s) of 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. See Hall v. State, 437 Md. 534, 540-41 (2014). Moreover,

counsel’s mere reference to, or argument regarding (or announced intent to

argue), the absence or insufficiency of the State’s scientific evidence to meet

its burden of proof to convict a criminal defendant does not warrant

automatically the court’s issuance of a CSI message. See Robinson v. State,

436 Md. 560, 580 (2014).

Stabb, “with a [clairvoyant] nod to the future,” noted that there might

be situations where CSI effect messages may be appropriate. Stabb, 423 Md.

at 473. When those situations arise, the message must be neutral, i.e., the

-Unreported Opinion\i

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. See Charles & Drake, 414 Md. at 738,

(noting the language of the voir dire question was not neutral, “using the term

‘convict,’ solely, rather than including its alternative”); Samba v. State, 206

Md. App. 508, 534 (2012) (“the anti-CSI effect instruction was fatally flawed

for not advising the jury to consider the lack of forensic evidence in

evaluating reasonable doubt”).

■

235 Md. App. at 412-15 (footnotes omitted);

As noted earlier, appellee claimed in his petition for post-conviction relief that he

was denied his right to effective assistance of counsel because his trial counsel erred in

failing to object to the “CSI effect” jury voir dire question. In making this argument,

appellee relied on Charles & Drake v. State, 414 Md. 726 (2010) and McFadden & Miles

v. State, 197 Md. App. 238 (2011) — in which the appellate Courts held that the trial courts

should not have given a voir dire question similar to the one in this case■-and Atkins v.

State, 421 Md. 434 (2011) and Stabb v. State, 423 Md. 454 (2011), in which the Courts

held that the trial courts should not give preemptive “CSI effect” jury instructions

Addressing the two voir dire decisions, the post-conviction court, in this matter

reasoned as follows:

Petitioner cites to decisions made in Charles & Drake and McFadden

which concluded the venire is poisoned by CSI effect voir dire questions,

depriving Defendants of fair and impartial juries. However, State v.

Armstead, 235 Md. App. 392 (2018) held Charles & Drake and McFadden

holdings do not apply retrospectively, and therefore would not apply to

Petitioner’s 2007 trial. 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.

“When a trial court injects erroneously a CSI effect voir dire question,

in order for a court to find harmless error, the court must be satisfied beyond

Unreported OpinionjA

a reasonable doubt that the abuse of discretion was harmless.” Armstead at

425 (citing Hall v. State, 437 Md. at 540; State v. Stringfellow, 425 Md. at

474). To pass the Strickland prejudice prong, “the record must demonstrate

that the reference to a lack of scientific evidence was not material to the

contested issue.” Armstead, at. 426. In the present case, the lack of scientific

evidence was material to the question of Petitioner’s guilt as the eye-witness

who previously identified Petitioner as the one who shot the victim recanted ^

on the stand. No forensic evidence tied Petitioner to the commission of this

crime.

• •

In cases where the CSI question was given but was deemed harmless

error, the prejudice injected by the question was subsequently ameliorated

either by the trial judge or the attorneys. Armstead, 2d All-. See Stringfellow

where the trial judge permitted Defendant’s attorney during closing, over

State’s objection, to make the argument that the police officer’s failure to

request testing of the confiscated handgun for latent fingerprints created

reasonable doubt. That is not the case in this trial. The jury instructions were

woefully inadequate, and did not ameliorate any potential prejudice caused

by the CSI instruction.

As earlier referenced, claims of ineffective assistance of counsel are governed by a

two-part test, under which the petitioner bears the burden of demonstrating: (1) that

counsel’s performance was deficient; and (2) that, as a result, the petitioner was prejudiced.

Barber v. State, 231 Md. App. 490, 515 (2017) (citing Strickland v. Washington, 466 U.S.

668 (1984)). We need not reach one part of the test if the other is dispositive; here, our

analysis will focus on. deficiency. Armstead, 235 Md. App. at 408 n.8 (2018) (citing

Strickland, 466 U.S. at 697).

The post-conviction court effectively wrote the performance prong out of the

Strickland standard. After recognizing that the “CSI effect” cases are not fully retroactive,

and after recognizing that “at the time of Petitioner’s trial, the CSI question was allowed,”

the court analyzed the prejudice prong of Strickland, stating that “the Court believes the

question must still be analyzed based on its prejudicial effect on the jury.”

-Unreported Opinion-

As noted in Armstead, “[i]t has long been established that an attorney is not required

ordinarily to be prescient as to changes in the law and act accordingly.” Armstead, 235 Md.

App. at 422 (citing Maryland v. Kulbicki, 577 U.S. 1 (2015) (per curiam)', Unger v. State,

427 Md. 383, 409 (2012)). The party claiming ineffective assistance of counsel must

therefore present “evidence establishing that the prevailing professional norm at the time

of his trial was to object” and if no such evidence is presented we assume “that counsel’s

conduct fell within a broad range of reasonable professional judgment.” Armstead, 235

Md. App. at 422-23 (cleaned up).

As can be discerned from the earlier recitation of the history of the “CSI effect” jury

instruction and voir dire question cases, the only “CSI effect” case that had been decided

at the time of appellee’s December 2007 trial was Evans v. State, 174 Md. App. 549 (2007)

in which this Court approved of a “CSI effect” jury instruction. As in Armstead, appellee

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. Consequently, we

conclude that trial counsel’s failure to object to the trial court’s “CSI effect” voir dire

question in this case was not deficient performance. Armstead, 235 Md. App. at 422-23.41

4 Appellee also relied on Allen v. State, 204 Md. App. 701 (2012), in which this

Court stated that Atkins and Stabb did not announce a new constitutional or statutory rule

but rather applied settled constitutional guarantees to a new and different actual pattern.

Thus, the holdings applied to all convictions. Id. at 722. Appellee argued that Allen stands

for the proposition that Atkins, and Stabb apply to this case. In Armstead, this Court rejected

that exact argument and distinguished A lien from Armstead, pointing out that Allen was on

direct appeal. In this case, the post-conviction court recognized this aspect of Armstead

and, accordingly, ruled that the holdings of those cases were not to be given retrospective

(continued...)

-Unreported Opinion-

II.

As noted earlier, in his petition for post-conviction relief, appellee contended that

he was denied his right to effective assistance of counsel when his trial counsel failed to

object to missing or incomplete jury instructions. Those instructions were from Chapter 3

of the Maryland Criminal Pattern Jury Instructions titled “Evidentiary Instructions.”

Specifically, appellee contends the trial court did not give instructions MPJI-Cr 3:00 “What

Constitutes Evidence,” MPJI-Cr 3:18 “Statement of Defendant,” and MPJI-Cr 3:30

“Identification of Defendant.” In addition, according to appellee, the trial court left a

sentence out of MPJI-Cr 3:19 “Prior Statements.”

The post-conviction court agreed with appellee’s argument and vacated his

convictions for this reason in addition to the lack of objection to the “CSI effect” voir dire

question. The post-conviction court failed to apply the Strickland test. Under that test, as

noted earlier, the defendant has the burden to prove that (1) trial counsel made a serious

attorney error, and (2) that the defendant suffered prejudice. Strickland, 466 U.S. at 687.

We address below the post-conviction court’s Strickland analysis of each of the jury

instructions that appellee claims his trial counsel should have objected to, which, as

previously mentioned, we review de novo. Evans, 151 Md. App. at 374.

A. MPJI-Cr 3:00 “What Constitutes Evidence”

The version of MPJI-Cr 3:00 “What Constitutes Evidence” in effect at the time of

application. The appellee claims that Armstead was wrongly decided. Regardless of the

result, we are bound by Armstead.

Unreported Opinion-

appellee’s 2007 trial was as follows:

In making your decision, you must consider the evidence in this case;

that is

(1) testimony from the witness stand;

(2) physical evidence or exhibits admitted into evidence;

(3) [stipulations;]

(4) [depositions;]

(5) [facts that 1 have judicially noticed.]

In evaluating the evidence, you should consider it in light of your own ;

experiences. You may draw any reasonable inferences or conclusions from

the evidence that you believe to be justified by common sense and your own

experiences.

The following things are not evidence and you should not give them

any weight or consideration:

(1) charging document;

(2) inadmissible or stricken evidence;

(3) questions and objections of counsel.

The charging document in this case is the formal method of accusing

the defendant of a crime. It is not evidence against the defendant and must

not create any inference of guilt.

Inadmissible or stricken evidence must not be considered or used by

you. You must disregard questions that I did not permit the witness to answer

and you must not speculate as to the possible answers. If after an answer was

given, I ruled that the answer should be stricken, you must disregard both the

question and the answer in your deliberations.

During the trial, I may have commented on the evidence Or asked a

question of a witness. You should not draw any inferences or conclusions

from my comments or questions, either as to the merits of the case or as to

my views regarding the witness.

Opening statements and closing arguments of lawyers are not

evidence in this case. They are intended only to help you to understand the

-Unreported Opinion

evidence and to apply the law. Therefore, if your memory of the evidence

differs from anything the lawyers or I may say, you must rely on your own

memory of the evidence.

The post-conviction court addressed appellee’s contention that his trial counsel

should have objected to the trial court’s failure to give the foregoing instruction as follows:

MPJI-Cr 3:00, what constitutes evidence, is an essential jury

instruction to aid in the proper deliberation of evidence in a case. Jurors

consist of twelve people off the street who invariably have no formal legal

training. Jurors must be directed to adhere to the law, and must be instructed

as to which law to apply during deliberations, or they won’t know what to do

or what to consider.

That terse analysis does not sufficiently address either prong of Strickland. In any

event, under our own independent appraisal of the claim, we discern neither deficient

performance nor prejudice resulting from the failure to object. Although the trial court did

not give this precise pattern instruction, most, if not all, of its content was given to the jury

either in preliminary instructions at the outset of trial, or during the jury instructions prior

to closing arguments.

......

At the outset of trial, the trial court told the jury:

Now, in a minute or two you’re going to hear opening statements from

these lawyers and that’s important. Opening statements are, but it’s not

evidence. So what you hear in opening statements is not evidence in the case.

The only evidence that you are to consider is what comes from that witness

stand in the form of answers.

Questions are not evidence. The answers are. Sometimes there’s an

objection. It’s my job to rule on objections. If an objection is made and I

sustain the objection, it shouldn’t be answered. Sometimes it is. Sometimes

witnesses blurt out an answer to which I have sustained an objection. I have

to ask you to strike it from your minds because it’s not evidence. Same way

with physical evidence. Physical evidence are documents, usually, and

photographs and what not that you may see in this trial. But until that physical

evidence is admitted, it’s not something that you can use and deliberate on.

-Unreported Opinion

So it’s got to be admitted into evidence before it becomes evidence. Those

are pretty basic rules, but I want to explain that to you because that’s what

you base your decision on.

Eventually when you get this case, you will take into that jury room

with you the evidence that you have heard and seen, the physical evidence

that ha[s] been admitted and, of course, your own common sense and life

experiences. All of that belongs in the deliberative process.

[A]t the end of the case you’re going to hear what we call closing argument

from counsel. They’re going to talk to you about the case. And that’s

important, too, but it’s not evidence. If your minds differ from something

they say in closing arguments, you make the call collectively.

Moreover, the instructions that the trial court gave the jury just prior to closing

arguments included the following:

When you deliberate, you base your decision on the evidence that you’ve

heard and seen, the evidence that’s been admitted into evidence. A lot of

these documents and physical evidence have been [referred] to but not

admitted, so don’t ask me for them if you don’t get them. ,

The case is over. And you take that with you and you take your own

common sense and life experiences. You put that all together and that’s how

you arrive at a verdict.

You have heard and seen witnesses. You have, to judge their

credibility. .

Also, there’s a couple kinds of ways of looking at evidence. Direct

evidence, you’ve all heard of. Eyewitness testimony. But there’s another kind

of evidence that’s just as important and in the eyes of the law, carries just as

much weight, as direct evidence, and. that’s what we call indirect , or

sometimes called circumstantial evidence. A good example, you go to bed

at night. The ground is dry. You get up in the morning. No snow.

Circumstantial evidence.

-Unreported Opinion-

: Now you’ve heard some talk about stipulations. That’s evidence. I

made that pretty clear at the time the stipulations were made.

Finally, after the State objected to a portion of appellee’s closing argument, the trial

court repeated its instruction to the jury that the closing argument was not evidence.

A comparison between what the trial court actually instructed the jury about what

constituted evidence and the pattern instruction reveals that nearly every applicable aspect

of the pattern instruction was included in what the trial court told the jury. Appellee points

out the reference in the pattern instruction to the charging document, which was not

covered by the actual instruction, but the charging document was not introduced into

evidence. Trial counsel did not err in failing to object to the court’s failure to have used the

pattern instruction.

B. MPJI-Cr 3:18 “Statement of Defendant” & MPJI-Cr 3:19 “Prior Statements”

The following statements provide the context for these issues.

The State introduced into evidence Jerrone’s pre-trial identification of appellee and

a written statement by him to the police. The trial court advised the jury that they could

consider the statements as substantive evidence.

In the defense’s case, after appellee testified that he never mentioned a “pump” to

police, the State introduced appellee’s prior statement to police. Because appellee’s prior

statement to police had been suppressed because of a Miranda violation, the statement was

admissible for impeachment.

Appellee argued to the post-conviction court that his attorney’s performance was

deficient in that the attorney did not object to the court’s failure to advise the jury that

-Unreported Opinion-

Jerrone’s written statement was admitted only to assist the jury in determining whether to

. i.

credit his trial testimony.

The trial court did not advise the jury that appellee’s statement was admissible only

on the issue of credibility. Defense counsel did not object, and the failure to object was not

raised before the post-conviction court.

Because the post-conviction court blended the analysis of the court’s failure to give

both of these instructions, we will address them together. The version of MPJI-Cr 3:18

“Statement of Defendant” in effect at the time of appellee’s 2007 trial provided as follows:

Evidence has been introduced that the defendant made a statement to

the police about the crime charged. The State must prove beyond a

reasonable doubt that the statement was freely and voluntarily made. A

voluntary statement is one that, under all circumstances was given freely. To

be voluntary it must have not been compelled or obtained as a result of any

force, promises, threats, inducements or offers of reward. In deciding

whether the statement was voluntary, consider all of the circumstances

surrounding the statement, including:

(1) the conversations, if any, between the police and the defendant;

(2); whether the defendant was warned of [his] [her] rights;

(3) the length of time that the defendant was questioned;

(4) who was present;

(5) the mental and physical condition of the defendant;

(6) whether the defendant was subjected to force or threat of force by

the police;

(7) the age, background, experience, education, character and

intelligence of the defendant;

[(8) whether the defendant was taken before a district court

commissioner without unnecessary delay following arrest and, if not,

whether that affected the voluntariness of the statement;]

-Unreported Opinion

(9) any other circumstances surrounding, the taking of the statement.

[If you find that the statement was actually made, you may not

consider it unless you find, beyond a reasonable doubt, that the statement

was voluntary.]

. •

If you find beyond a reasonable doubt that the statement was

voluntary, give it such weight as you believe it deserves. If you do not find

beyond a reasonable doubt that the statement was voluntary, you must

disregard it.

The version of MPJI-Cr 3:19 “Prior Statements” in effect at the time of appellee’s

2007 trial stated as follows, with the portion that the trial court omitted in italics:

PRIOR STATEMENTS

made a statement [before

You have heard testimony that

trial] [at another hearing] [out of your presence]. Testimony concerning that

statement was permitted only to help you decide whether to believe the

testimony that the witness gave during this trial.

It is for you to decide whether to believe the trial testimony of

__in whole Or in part, but you may not use the earlier statementfor "'■■■■

any purpose other than to assist you in making that decision.

The post-conviction court addressed appellee’s contentions that his trial counsel

should have objected to the trial court’s failure to give MPJI-Cr 3:18 “Statement of

Defendant” and failure to include the last sentence of MPJI-Cr 3:19 “Prior Statements” as

follows:

The record shows the trial Court allowed a prior statement of

Defendant to be admitted into evidence when Detective Delaney testified that

during a visit with Petitioner in the County Detention Center, he blurted out

that [he] believed his family would be wasting their time hiring an attorney

because the police already had the “pump,” meaning the shotgun. Transcript

Dec. 5, 2007 Vol. II, pg. 99-101. The given instruction on MPJI-Cr 3:19,

Prior Statement of a Witness was meaningless without the last part

instructing the jurors on “you may not use the earlier statement for any

purpose other than to assist you in making that decision.” The jury also

should have been given the instruction on determination of the voluntariness

-Unreported Opinion-

of the defendant’s statement, which is explained in MPJI-Cr 3:18.

With respect to MPJI-Cr 3:18, appellee claims, and the post-conviction court found,

that appellee was denied his right to effective assistance of counsel when trial counsel

failed to object to the trial court’s failure to give MPJI-Cr 3:18 which concerns the

voluntariness of appellee’s statement to the police that he believed his parents were wasting

money hiring a lawyer because the police had recovered the “pump,” meaning the shotgun.

In order to generate that instruction, the defense needed to put forth some evidence

that the statement was made involuntarily. See Hof v. State, 337 Md. 581, 620 (1995) (“So

long as there is some evidence which supports the defendant’s claim that his confession

was inyoluntary, the issue has been generated.”). At appellee’s trial, the defense never

raised the issue that appellee’s statement about the “pump” was involuntary. To the

contrary, - appellee testified that he never made, the statement, not that he made it

involuntarily. While it is true that appellee was in a room with two detectives who were

there to execute a search warrant for appellee’s DNA when he made the statement, the

statement was, only barely, if at all, the product of the detective’s question about whether

appellee had an attorney. In short, if the instruction was generated, and if appellee’s

attorney had requested it and the trial court had given it, we are not persuaded that appellee

was prejudiced. In sum,T we conclude that appellee has not demonstrated error or prejudice

within the contemplation of Strickland and its progeny.

Appellee also claims that his trial counsel erred in not objecting to the trial court’s

failure to give the last sentence of MPJI-Cr 3:19 which would have told the jury that they

“may not use the earlier statement for any purpose other than to assist you in” determining

-Unreported Opinion

the credibility of the witness.5

With respect to Jerrone, a failure to instruct would have to rely on the fundamental

premise that all of Jerrone’s prior statements were admissible into evidence solely for

impeachment purposes. To the contrary, his prior written statement and his oral

identification of appellee as the shooter were admissible as substantive evidence. See

Nance v. State, 331 Md. 549, 569 (1993); Md. Rule 5-802.1(b); and Md. Rule 5-802.1(c).

Consistent with those theories of admissibility, the trial court instructed the jury as

follows:

You also have heard testimony about Jerrone Joyner, that he made a written

statement prior to trial and an oral statement of identification prior to trial.

The written statement was introduced into evidence. The prior written

statement as Well as the oral statement of identification may be considered

by you as what we call testimonial evidence, substantive evidence. It’s for

you-to decide whether to believe the trial testimony of Jerrone Joyner in

5 In his post-conviction petition, appellee complained that the trial court erroneously

omitted the .italicized portion of the instruction, and reasoned that appellee was prejudiced

by this omission because, at trial, Jerrone was 'impeached with a prior inconsistent

statement. At trial, Jerrone denied identifying appellee as the shooter, yet a police detective

testified to a prior inconsistent statement whereby Jerrone positively identified appellee as

the shooter. Under those circumstances, according to appellee, the jury, without the benefit

of the final sentence of the jury instruction, allowed the jury to consider appellee’s prior

inconsistent statement as substantive evidence and not only as impeachment evidence.

The post-conviction court apparently believed that the subject of the instruction was

appellee. The post-conviction court reasoned that appellee was prejudiced because the jury

was left to believe that appellee’s statement, that his family was making a mistake in hiring

a lawyer because the police had the “pump,” which he denied making at trial, was the

statement at issue for this instruction. The finding that the subject of the prior statement

jury instruction was appellee is clearly erroneous. Jerrone Joyner was the subject of that

instruction.

On appeal, appellee now argues, consistent with the post-conviction court’s ruling,

that the subject of the prior statement instruction was him. Given that, during the post

conviction proceedings, appellee never raised this issue with respect to his prior statement,

we decline to address it on appeal.

-Unreported Opinion-

whole or in part, and/or whether to believe the prior written statement in

whole or in part, and/or whether to believe the oral statement of identification

in whole or in part.

’

Hence, at least as far as Jerrone’s prior statements are concerned, there was nothing

objectionable about giving the instruction the trial court gave and not giving the one that

appellee complains about. Trial counsel did not err with respect to this instruction.

C. MPJI-Cr 3:30 “Identification of Defendant”

The version of MPJI-Cr 3:30 “Identification of Defendant” in effect at the time of

appellee’s 2007 trial stated as follows:

The burden is on the State to prove beyond a reasonable doubt that the

offense was committed and that the defendant was the person who committed

it. You have heard evidence regarding the identification of the defendant as

the person who committed the crime. In this connection, you should consider

the witness’s opportunity to observe the criminal act and the person

committing it, including the length of time the witness bad to observe the

person committing the crime, the witness’s state of mind, and any other

circumstance surrounding the event. You should also consider the witness’s

certainty or lack of certainty, the accuracy of any prior description, and the

witness’s credibility or lack of credibility, as well as any other factor

surrounding the identification. [You have heard evidence that prior to this

trial, a witness identified the defendant by

•]

[The identification of the defendant by a single eyewitness, as the

person who committed the crime, if believed beyond a reasonable doubt, can

be enough evidence to convict the defendant. However, you should examine

the identification of the defendant with great care.]

It is for you to determine the reliability of any identification and give

it the weight you believe it deserves.

The post-conviction court addressed appellee’s contention that his trial counsel

should have objected to the trial court’s failure to give the foregoing instruction as follows:

MPJI-Cr 3:30, identification of the defendant, was possibly one of the

most important instructions in the present case, outside of MPJI-Cr 3:00. The

evidence in the present case was largely circumstantial and the eyewitness

-Unreported Opinion-

identification of the defendant as the shooter in the murder of the victim was

paramount to the State’s case. Without a doubt, the key eyewitness, Mr.

Jerrone Joyner, recanted on the stand his eye witness’ testimony and directly

contradicted his prior written and oral statements. Transcript Dec. 4, 2007

Vol. I, pg. 145 line 21-23. Jury instructions MPJI-Cr 3:196 on how the jury

was to consider the eyewitnesses’ testimony before and during the trial was

imperative and should have been given to the jury:

The first sentence of the pattern instruction was fairly covered by the trial court’s

reasonable doubt jury instruction and its alibi jury instruction. In both of those instructions,

the jury was reminded that the State had the burden to prove appellant’s criminal agency.

, Moreover, the remainder of the pattern instruction was fairly covered when the trial

court instructed the jury on how to assess witness testimony even though the court’s

instructions were not specifically tied to the identification of appellee. The trial court

instructed the jury as follows:

You have heard and seen witnesses. You have to judge their

credibility. That’s your call. . . . How do you really assess the credibility of

. a witness? Well, we have some factors for you that might help. One is simply

by looking at the witness and observing his or her demeanor and manner of

testifying.

Did the witness have a motive not to tell the truth, is a factor. Was the

witness’s testimony consistent[?| What was the accuracy of the witness’s

memory? Did the witness have some interest in the outcome of the case? Was

the witness’s testimony supported or contradicted by other evidence in the

case? And did the witness have the ability to perceive the act about which

the witness is testifying. And whether the witness in[-person] testimony

before the court differed from something the witness said on some prior

occasion.

You don’t have to believe the testimony of any witness, even though

the witness’s testimony is uncontradicted. So you can believe all, part or none

of the testimony of any witness.

6 We can only assume this is intended to reference MPJI-Cr 3:30.

-Unreported Opinion'■

--&

As can be seen, although the court’s instructions did not specifically address the

identification of appellee, the instructions told the jurors to consider a variety of factors

when assessing testimony of witnesses, including their demeanor, motive to tell the truth,

the consistency and accuracy of their testimony , whether their testimony is contradicted by

other evidence, and their ability to perceive what they are testifying about.

While it is true that, under some circumstances, the failure to give the MPJI-Cr 3:30

jury instmction upon request could amount to an abuse of discretion, Gunning v. State, 347

Md. 332 (1997), it does not follow that the failure to object to the trial court’s failure to

give such an instruction automatically amounts to deficient performance. Under’the

circumstances of this case, we conclude that trial counsel’s failure to object was not

deficient performance.

D. Prejudice

Lastly, the post-conviction court offered the following remarks at the conclusion of

its analysis:

The absence of these instructions in a trial where defendant has

adamantly denied being the shooter, and the one person who allegedly stated

he was, gives conflicting and inconsistent testimony, was key to his

conviction. The State is correct, it is always speculative as to what the

outcome of a trial would have been absence [sic] errors. But to characterize

the evidence against Petitioner in this case as compelling and quite strong

regardless of these missing instructions, and the CSI voir dire question, are

without merit. This Court cannot fathom how the absence of giving these

standard four instructions correctly did not have a prejudicial impact on the

outcome of this trial. Petitioner is entitled to a fair trial, and due to. the

ineffectiveness of his trial counsel, did not receive one.

The post-conviction court’s analysis presumes that appellee was prejudiced. Such a

presumption is reserved for rare circumstances that are not present here. In fact, not even

-Unreported Opinion-

a structural error, which is presumptively prejudicial on direct appeal, is necessarily

presumptively prejudicial on a claim of ineffective assistance of counsel. Weaver v.

Massachusetts, 137 S. Ct. 1899 (2017). In Weaver, the Supreme Court had the opportunity

to determine that all structural errors are presumptively prejudicial, but chose not to do so.

Id. at 1911. In any event, none of the purported errors in this case constitute structural

errors.

Although Jerrone recanted his identification to the police of appellee as the shooter

at trial, the evidence of guilt was substantial. The State admitted into evidence Jerrone’s

prior written statement wherein he described appellee and said that he was in the pizzeria

before the shooting, and that he saw the shooter with a sawed-off shotgun. The State’s case

also included evidence that Jerrone had identified appellee in a photographic array, which

he explained with the comment that he only picked appellee’s photograph because appellee

was the only person in the array that he did not know. Two other witnesses, who were both

familiar with appellee and knew him as “Dip,” testified that appellee was in the pizzeria

just prior to the shooting. One of them testified that “Dip” followed the victim outside. The

other said that he heard an argument before the shooting.

Police officers testified that four days after the shooting, appellant ran when they

approached him. One of them saw him with a firearm. After appellee was apprehended, the

police found a sawed-off shotgun along appellee’s path. That shotgun was of the same

gauge, had the same size shot, and had the same wadding as the shotgun shell remnants

removed from the victim’s head during the autopsy.

The State presented evidence that appellee made a seriously incriminating

-Unreported Opinion-

statement after being asked whether he had an attorney and appellee indicated he believed

his family was wasting its money because the police had recovered the “pump.” As the

prosecutor noted during closing argument, in order to believe appellee’s testimony that he

never was in the pizzeria on the night of the shooting, multiple State’s, witnesses, including

police officers, would have been testifying to the same lie.

To succeed on a claim of ineffective assistance of counsel, in addition to proving

deficient performance of counsel, a defendant must demonstrate that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Armstead, 235 Md. App. at 425 (quoting State v. Sanmartin Prado,

448 Md. 664, 681-82 (2016)). Given the state of the evidence at appellee’s trial, we are not

persuaded that there is a reasonable probability that the result of his trial would have been

different absent any of the alleged errors of counsel.

Consequently, we shall reverse.

JUDGMENT OF THE CIRCUIT

COURT FOR PRINCE GEORGE’S

COUNTY REVERSED. COSTS TO

BE PAID BY APPELLEE.

? Qx

No.

IN THE

SUPREME COURT OF THE UNITED STATES

— PETITIONER

(Your Name)

VS.

— RESPONDENT(S)

PROOF OF SERVICE

ktfi&Au

doW

-g fo s

, do swear or declare that on this date,

¥/,b &

20 03-, as required by Supreme Court Rule 29 I have

served the enclosed MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

and PETITION FOR A WRIT OF CERTIORARI on each party to the above proceeding

or that party’s counsel, and on every other person required to be served, by depositing

an envelope containing the above documents in the United States mail properly addressed

to each of them and with first-class postage prepaid, or by delivery to a third-party

commercial carrier for delivery within 3 calendar days.

*-\Y>

The names and addresses of those served are as follows:

Srja.Vos

L. Qxj-\(ssjjS C-QwaW

inn V3 rv\c;A

(V\?>HQV

I declare under penalty of perjury that the foregoing is true and correct.

Executed on

Ip*

,20JH

(Signature)

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.