Harris v. State

• Decision Date: 01 September 1984
• Docket Number: No. 107,107
• Citation: 496 A.2d 1074,303 Md. 685
• Parties: Jackie Kevin HARRIS v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 685

303 Md. 685

496 A.2d 1074

Jackie Kevin HARRIS v. STATE of Maryland.

No. 107, Sept. Term, 1984.

Court of Appeals of Maryland.

Sept. 9, 1985.

Michael R. Braudes, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender and George E. Burns, Jr., Asst. Public Defender, Baltimore, on brief), for appellant

Deborah K. Chasanow, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on brief), for appellee.

Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, RODOWSKY, JJ., and CHARLES E. ORTH, Jr., Associate Judge of the Court of Appeals (retired), and JAMES C. MORTON, Jr., Associate Judge of the Court of Special Appeals (retired), Specially Assigned.

ORTH, Judge.

THE HISTORY OF THE CASE

Jackie Kevin Harris is incarcerated in the Maryland Penitentiary under a sentence of death. He entered pleas of guilty in the Circuit Court for Baltimore County to murder in the first degree, two counts of armed robbery and a handgun violation. The pleas were accepted and he was found guilty on all counts. On 5 April 1982, after a sentencing proceeding as prescribed by Maryland Code (1957, 1982 Repl.Vol.), Art. 27, § 413, the trial judge imposed the death penalty for first degree murder and consecutive sentences of imprisonment totalling 20 years for the related offenses. In Harris v. State, 299 Md. 511, 513-514, 474 A.2d 890 (1984) (Harris II ), Eldridge, J., speaking for the Court, recounted what happened on appeal from those judgments.

... Harris raised numerous grounds for reversal of his guilty verdicts and sentences. He claimed, inter alia, that his guilty pleas were not made voluntarily, that he was denied effective assistance of counsel, and that his waiver of a jury for sentencing was not knowing and voluntary. [In Harris v. State, 295 Md. 329, 455 A.2d 979 (1983) (Harris I ) w]e ruled that Harris's guilty pleas were made freely and knowingly, Maryland Rule 731 c., but that his jury waiver was not knowing and voluntary. We did not pass on the ineffective assistance of counsel claim because we believed that it would best be resolved in a collateral evidentiary proceeding such as a post conviction hearing. Accordingly, this Court affirmed the verdicts but vacated the death sentence and remanded for a new sentencing procedure. Harris II [299 Md.] at 513-514, 474 A.2d 890.

On the remand pursuant to Harris I, prior to the resentencing proceeding, Harris, then represented by new counsel, filed a motion in the circuit court under Maryland Rule 731 f.1. to withdraw his pleas of guilty. ¹ The motion was based on the grounds that the pleas were involuntary under the standards of Md.Rule 731 c., and that they were entered without the effective assistance of counsel. The trial judge denied the motion without a hearing on the merits. A sentencing proceeding with respect to the first degree murder conviction was then held before a jury, which determined that the death sentence was to be imposed. The judge imposed it.

The trial judge gave two reasons for denying the motion to withdraw the guilty pleas. First, he believed that our ruling in Harris I that the pleas were voluntary with respect to Rule 731 c. was conclusive as to the law of the case. He was correct in this belief. Second, he thought that a proceeding under the post conviction statute, Md.Code, Art. 27, § 645A, was the sole means of determining an ineffective assistance of counsel claim. We have expressed the view that a post conviction proceeding is the preferable route for raising such a claim, see Johnson v. State, 292 Md. 405, 434-435, 439 A.2d 542 (1982), quoting State v. Zimmerman, 261 Md. 11, 24, 273 A.2d 156 (1971). But we held in Harris II that in the circumstances of this case, the judge was mistaken in concluding that he could not hear the incompetency of counsel claim on the merits. On Harris's appeal from this denial of his motion, we observed that we were "presented with a unique set of facts which justifie[d] resolution of the ineffective assistance of counsel claims in a proceeding other than one under the post conviction procedure statute." Harris II [299 Md.] at 518, 474 A.2d 890. "[I]t is desirable," we opined, "for the trial court to resolve the claims of counsel incompetency in a Rule 731 f.1. proceeding instead of delaying the matter until a post conviction application is filed." Id. We vacated the circuit court's order denying the motion, and remanded the case for an evidentiary hearing on the competency of counsel issue. On remand, the court, in compliance with our mandate, conducted a plenary hearing. The motion to withdraw the guilty pleas was again denied. Harris's appeal from that judgment is now before us.

The present posture of the case is that Harris stands convicted of murder in the first degree, two robbery offenses and a handgun violation. ² The sentences imposed on the convictions following the remand mandated by Harris I are in full force and effect. Harris's contention on this appeal is that the trial judge erred in finding that he had not been denied the effective assistance of counsel with respect to the convictions and, therefore, the denial of the motion to withdraw the guilty pleas was erroneous.

In Harris II, when we remanded the case for an evidentiary hearing on the motion, we explained:

We shall not disturb our previous affirmance of the verdicts, and those verdicts shall remain intact unless and until the circuit court, after the hearing, determines that Harris was denied his constitutional right to the effective assistance of counsel. If the circuit court finds that Harris was denied such constitutional right, the court should permit the guilty pleas to be withdrawn, should set aside the verdicts and sentences on the murder, robbery, and handgun charges, and should promptly schedule a new trial on these charges. If, on the other hand, the circuit court concludes that Harris was not denied his constitutional right to competent legal representation, it should deny the motion to withdraw the guilty pleas. We shall then review the death sentence as we are required to do by statute. See Art. 27, § 414(a). Harris II at 519, 474 A.2d 890.

THE INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM

The target of Harris's ineffective assistance of counsel claim is G. Darrell Russell, Esq. Russell's background and experience may be gleaned from his testimony transcribed in the record before us. He was graduated from the University of Baltimore Law School in 1967 and was admitted to the Maryland bar in 1969. He was a law clerk for a judge of the Circuit Court for Baltimore County. He worked for two law firms as counsel in "general litigation." He was an Assistant Attorney General for four years. His primary responsibility in that position was representing the State Accident Fund, but he was also the prosecutor "for licensing and regulations" and wrote a criminal brief "every six weeks or so." At one time, as an Assistant Attorney General, he was a "chief juvenile law consultant and wrote the opinions for juvenile law." He went into private practice. He became "a full time member of the staff of the Public Defender" for Baltimore County in June 1978, but maintained his private practice. He served as an Assistant Public Defender for four years. In that capacity, up to the time he appeared as Harris's attorney, he had tried some 1,000 criminal cases in the circuit court, but only about 12 of them were jury trials. Only six or eight of all the cases he tried were murder cases and, to the best of his recollection, four of them were first degree murder cases. He resigned his position as an Assistant Public Defender in July 1982 to run for the office of State's Attorney for Baltimore County.

Russell, as an Assistant Public Defender for Baltimore County, entered his appearance as Harris's counsel shortly after the indictment was returned. He withdrew from the case at the time the first appeal was noted. It is his performance during the period of his representation that is critical on this appeal. This is so because Harris's claim is one of "actual ineffectiveness." The Sixth Amendment to the Constitution of the United States, applicable to the states through the Fourteenth Amendment, provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." Argersinger v. Hamlin, 407 U.S. 25, 27, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); State v. Renshaw, 276 Md. 259, 264, 347 A.2d 219 (1975). "[T]he right to counsel is the right to the effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763 (1970). Thus, the right is denied, for example, when a defendant is not afforded the opportunity to have the assistance of counsel, whether retained or appointed, or when there is governmental interference with the ability of counsel to make independent decisions about how to conduct the defense. "Counsel, however, can also deprive a defendant of the right to effective assistance, simply by failing to render 'adequate legal assistance....' " Strickland v. Washington, 466 U.S. 668, ----, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). "Actual ineffectiveness" is the basis of Harris's claim.

Prior to Strickland the Supreme Court had not elaborated on the meaning of the constitutional requirement of effective assistance of counsel in cases presenting claims of "actual ineffectiveness." In Strickland the Court gave meaning to the requirement. It took the purpose of the requirement--to ensure a fair trial--as the guide. It declared:

The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Id., 104 S.Ct. at 2064.

Harris evaluates the performance of Russell by the...