Bowers v. State

• Citation: 578 A.2d 734,320 Md. 416
• Decision Date: 04 September 1990
• Docket Number: No. 111,111
• Parties: , 59 USLW 2198 Marselle Jerome BOWERS v. STATE of Maryland. Sept. Term 1989.
• Court: Court of Appeals of Maryland

Page 416

320 Md. 416

578 A.2d 734, 59 USLW 2198

Marselle Jerome BOWERS v. STATE of Maryland.

No. 111 Sept. Term 1989.

Court of Appeals of Maryland.

Sept. 4, 1990.

Judith R. Catterton (Catterton, Kemp & Mason, Rockville), both on brief, for appellant.

Richard B. Rosenblatt, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore), both on brief, for appellee.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS ^* and CHASANOW, JJ.

ADKINS, Judge.

In this case we shall hold that Marselle Jerome Bowers was denied his sixth amendment right to effective assistance of counsel during his 1982 trial for murder. We must, therefore, set aside his conviction.

I.

We sketch the procedural background of the case. On 16 September 1981, Bowers was charged with murder. Following a jury trial in the Circuit Court for Charles County, he was convicted, on 17 September 1982, of premeditated first degree murder. On 23 September 1982, following a capital sentencing proceeding, the same jury sentenced Bowers to death. This Court affirmed the conviction, vacated the sentence, and remanded for a new sentencing proceeding. Bowers v. State, 298 Md. 115, 468 A.2d 101 (1983), cert. denied, 479 U.S. 890, 107 S.Ct. 292, 93 L.Ed.2d 265 (1986) (Bowers I).

At the new sentencing proceeding, on 25 October 1984, a jury again sentenced Bowers to death. Bowers appealed; this Court affirmed the imposition of the death sentence. Bowers v. State, 306 Md. 120, 507 A.2d 1072, cert. denied, 479 U.S. 890, 107 S.Ct. 292, 93 L.Ed.2d 265 (1986) (Bowers II). Bowers sought post-conviction relief. A post-conviction hearing was held before Judge Robert C. Nalley. On 31 August 1989 Judge Nalley affirmed Bowers's conviction but granted a new sentencing hearing. ¹

Bowers's application for leave to appeal from the post-conviction court's denial of his request that his conviction be set aside came to this Court pursuant to Maryland Rule 8-306(e). We granted it.

II.

A.

The events that set in motion the aforegoing nine years of legal combat occurred in the summer of 1981. A brief summary of those events will facilitate an understanding of Bowers's contentions in this case.

On 9 July 1981 Maryland State Police discovered the body of Monica McNamara near a railroad overpass in Somerset County. Her death had been caused by strangulation. She had been raped and sodomized. Her car was found abandoned on a roadside in Worcester County, where it had been observed on the evening of 8 July.

On 31 July the police learned that a man who called himself Robert McNamara had been arrested in Petersburg, Virginia. He had attempted to use Monica McNamara's credit card to pay for accommodations at a Ramada Inn there. When Maryland State Trooper D. Bruce Hornung confronted "McNamara" in Petersburg on 1 August, the man admitted his real name was Marselle Jerome Bowers. Later he gave Trooper Hornung a narrative statement in which he said that he and an accomplice, one Alexander Peterson, had abducted Monica McNamara and had intercourse with her, and that Peterson had strangled her. Bowers denied that he had played any part in the killing itself.

Separate cases were brought against Bowers. In the Circuit Court for Worcester County he was charged with kidnapping. That case was removed to Talbot County, where Bowers was convicted and given the maximum sentence. The conviction was affirmed in an unreported decision of the Court of Special Appeals.

In the Circuit Court for Somerset County Bowers was charged with first degree murder--both premeditated murder and felony murder. That case was removed to Charles County. When Bowers raised double jeopardy questions (presumably based on the separate kidnapping prosecution) the State dropped the felony murder charge. Bowers was convicted of premeditated murder and sentenced to death. This is the case reported in Bowers I, and is the one now before us. ²

B.

As the preceding narrative shows, Bowers's own version of the events of 8 July 1981 involved the contention that he had nothing to do with McNamara's killing. In his statement to Trooper Hornung, Bowers claimed that Bowers had proposed simply trussing up the victim and leaving her by the roadside, but that Peterson had insisted on killing her. Failure to press this theory of defense in a reasonably competent manner is the basis for Bowers's first and strongest argument that the assistance of counsel he received was less effective than that permitted by the sixth amendment.

That counsel was Solomon Reddick, a staff attorney in the Public Defender's office. He was assigned to represent Bowers after some preliminary jockeying caused by Bowers's dissatisfaction with an earlier public defender, and despite Bowers's expressed discontent with counsel which continued through much of the case. We shall return to that later. For the present, we note that Reddick, when he undertook representation of Bowers, was assigned to the Public Defender's inmate services unit where he handled post-conviction cases. There is no indication in the record that he had ever defended in a capital case, or even a first-degree murder case. Despite testimony that it was the general policy of the Public Defender to assign two lawyers to every death-penalty case, and despite Reddick's apparent inexperience in this type of case, he was Bowers's only lawyer during most of this case.

We are required to "presum[e] ... that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment...." State v. Tichnell, 306 Md. 428, 456, 509 A.2d 1179, 1193, cert. denied, 479 U.S. 995, 107 S.Ct. 598, 93 L.Ed.2d 598 (1986). That "presumption is not undermined by the fact that the defendant's lawyer is young or inexperienced." Harris v. State, 303 Md. 685, 719, 496 A.2d 1074, 1091 (1985). Nevertheless, "[t]hat a person who happens to be a lawyer is present at trial alongside the accused ... is not enough to satisfy the constitutional command" that there be effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674, 692 (1984). And in any case, " '[t]he character of a particular lawyer's experience may shed light in an evaluation of his actual performance.' " Harris, 303 Md. at 719, 496 A.2d at 1091 (quoting United States v. Cronic, 466 U.S. 648, 665, 104 S.Ct. 2039, 2050, 80 L.Ed.2d 657, 672 (1984)).

We shall keep that in mind as we review Bowers's claims.

C.

The State sought to dispel the notion that Bowers had been accompanied by a companion named Alexander Peterson on 8 July 1981 by presenting evidence that a man named Alexander Peterson had been in prison in another state at the critical time. Thus, it was of great importance to the defense to produce evidence that someone had been with Bowers, as he insisted.

One opportunity to do so came in connection with the testimony of Robert J. Radnoti, a forensic chemist produced by the State. Reddick had learned through discovery that a Negroid hair was found on the victim's head (Peterson was said to be black, as is Bowers). A State Police report stated that hair samples taken from Bowers "were different when compared to the Negroid hair strand" found on the victim [emphasis in original]. Radnoti had tested the hairs, but was not asked about them on direct examination.

On cross-examination, Reddick tried to ask the chemist about those hairs. The State objected because the question was beyond the scope of direct. The State's Attorney noted that

if he [Reddick] wants to get this thing in he has an option to call this man [Radnoti] as a witness.... If he wants to bring this man as a witness that is fine. There is a way to do it.

Reddick argued that the laboratory report "is admissible now since we have shown that [Radnoti] has read from part of the report." The court disagreed and sustained the objection. Reddick posed no more questions, but asked that the judge not excuse Radnoti, who was the State's last witness. The judge directed Radnoti to return to the witness room. The State rested. Reddick never called Radnoti and the incompatible hair evidence was never placed before the jury. Thus, Reddick could not argue that Bowers's contention as to the presence of a companion was supported by evidence other than Bowers's own say-so.

Reddick's other omission relating to the possible presence of Peterson was not as dramatic, but still of some significance. Bowers, it will be recalled, had been arrested by Virginia authorities on a charge of defrauding the innkeeper of a Ramada Inn. Sadie Hood, the general manager of that Inn, testified for the State. She identified Bowers as the guest with whom she had spoken about his bill. When she went to his room (where he was registered as Robert McNamara) she said she "found two gentlemen in the room" one of whom was introduced as McNamara. She identified Bowers as "McNamara." Reddick asked her no questions about the second man--for example, whether he was black, or whether he was introduced as Peterson--so there was nothing specific that the defense could argue in an effort to suggest that man was Peterson.

The question is whether these shortcomings on Reddick's part meet the tests for determining whether counsel's representation is so deficient that it is constitutionally ineffective.

D.

The tests are set forth in Strickland v. Washington, supra. We reviewed and applied them most recently in State v. Colvin, 314 Md. 1, 548 A.2d 506 (1988), where Judge Rodowsky, for the Court, noted that they had been "painstakingly analyzed" by Judge Orth in Harris, supra, and "distilled" by Chief Judge Murphy in Tichnell, supra. Colvin, 314 Md. at 5-6, 548 A.2d at 508. Since Strickland, the Supreme Court also has revisited the area. See Burger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987), and Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). See also Perry v. Leeke...