Cirincione v. State

Citation705 A.2d 96,119 Md.App. 471
Decision Date01 September 1997
Docket NumberNo. 494,494
PartiesLeonard Paul CIRINCIONE v. STATE of Maryland
CourtCourt of Special Appeals of Maryland

Larry Allen Nathans, Baltimore, for appellant.

Gwynn Kinsey, Jr., Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. and Patricia Jessamy, State's Atty. for Baltimore City, on the brief) Baltimore, for appellee.

Argued before WENNER, SALMON and THIEME, JJ.

THIEME, Judge.

Appellant Leonard P. Cirincione was convicted on 16 April 1987 by a jury in the Circuit Court for Baltimore City, Judge Kathleen O'Ferrall Friedman presiding, of first degree murder, attempted first degree murder, and assault. He was sentenced, respectively, to life, twenty years consecutive, and three years concurrent imprisonment. This Court affirmed on appeal, Cirincione v. State, 75 Md.App. 166, 540 A.2d 1151, cert. denied, 313 Md. 611, 547 A.2d 188 (1988). On 27 September 1995, appellant timely filed with the same circuit court his first and only petition for post conviction relief, pursuant to the Maryland Post Conviction Procedure Act, Art. 27, § 645A, and Maryland Rules 4-401 to 4-408. Judge David B. Mitchell conducted hearings on the petition on 21 May and 25 June, and he denied the requested relief on 20 December 1996. This Court granted the timely filed application for leave to appeal the denial, and appellant now presents us with two questions, which we have recast as follows:

I. Did the post conviction court err when it failed to find that appellant's right to effective assistance of counsel was violated prior to trial, during trial, or cumulatively?

II. Did the post conviction court err when it failed to find the appellant's right to a fair trial and due process were violated because the jury instruction on reasonable doubt was constitutionally deficient?

For the reasons set forth herein, we will affirm.

As appellant's claims alleging ineffective assistance of counsel are necessarily quite fact-intensive, we will relate only the basic facts at this point and supplement as necessary in discussion of each claim. On the evening of 12 June 1986, several Baltimore City police officers were directing traffic in the vicinity of Memorial Stadium. The Baltimore Orioles were playing at home that night, and the officers were facilitating the normal, pre-game parking process. Appellant approached the vicinity in his automobile and sped past a number of officers who were directing him to turn and to stop. He swerved and accelerated toward Officer Michael Parker, who was forced to leap out of the way of the vehicle. Appellant then turned left, accelerated again, and started heading directly toward Officers Paul Aires and Richard Miller. Both initially signaled for appellant to stop, then both were forced to run for safety. Officer Aires was successful; the car merely brushed his clothing. Officer Miller was struck with great force. He died more than five weeks later as a result of the impact.

Appellant was tried in April 1987 for an assault on Officer Parker, attempted first degree murder of Officer Aires, and first degree murder of Officer Miller. The prosecution gave notice of its intent to seek the death penalty with regard to the latter offense. As appellant characterized in his brief to this Court, "It was undisputed at trial that Appellant acted recklessly when he struck Officer Miller with Appellant's automobile. The issue at trial was Appellant's mental state/capacity--at the time of the crime--to commit a willful, premeditated and deliberate murder." The lone defense presented was voluntary intoxication due to ingestion of phencyclidine (PCP), which, although not an excuse to a crime, can rebut the existence of a specific intent. In appellant's case, a successful defense of voluntary intoxication would have reduced his first degree murder and attempted first degree murder charges (which require a specific intent to kill) to ones of second degree (requiring the mere general intent of malice, i.e., extreme recklessness). 1 In essence, then, appellant presented no affirmative defense to the second degree murder charges or the assault charge and focused on challenging the existence of the specific intent to kill Officers Miller and Aires.

The evidence presented by the defense at trial was tightly focused on voluntary intoxication. The first thirteen defense witnesses were called for the purpose of establishing appellant's long history of drug abuse and his intoxication on the day of the collision. Several childhood friends of appellant testified to his PCP abuse extending as far back as the eighth grade, i.e., around 1975. Another friend testified that appellant told her five days before the collision that he intended to buy some PCP flakes that night. The day before the collision, according to another friend, appellant was sitting on a couch talking with friends when he suddenly became non-responsive and perhaps even catatonic for several minutes before returning to at least partial normalcy. Several family members who ate dinner with appellant about an hour before the collision testified that appellant was oddly calm, that he had no appetite, and that he left the table early. Two different friends who had frequently seen appellant under the influence of PCP were shown a videotape of appellant being arrested at the scene and testified that appellant appeared to be intoxicated by PCP. The arresting officer testified that he discovered one partially smoked PCP cigarette butt in the ashtray of appellant's car, plus two more PCP butts and a roach clip in a 35-millimeter film canister in the pouch behind the driver's seat.

Appellant took the stand and testified about his long history of drug use and his intoxication on the day of the collision. He said he had gone on a PCP binge for about a week prior to the collision, having smoked PCP every day. He claimed to have smoked six or seven PCP cigarettes on the day of the collision. He said he started smoking them during the afternoon and then had two PCP joints within an hour of the collision. As he was driving in his car, he noticed he was starting to have trouble concentrating, and he turned down his radio. He testified that he entered a "dream state" and was only "semi-conscious." He heard a noise like a thud and then remembered coming out of his state, "like waking up," with police and a crowd of people around him. He claimed to have been unaware even then that he had hit a person with his car.

The final defense witness was Dr. Michael Spodak, an expert forensic psychiatrist. He testified as to the general effects of PCP, and he explored its long-term effects on appellant. Based on appellant's school records and a psychological report prepared in anticipation of trial by defense expert Dr. Lee Richmond, Dr. Spodak testified that appellant had a "physical brain impairment" brought on by drug abuse and that this impairment made him especially susceptible to the effects of PCP. Dr. Spodak offered his expert opinion, based on the statements of the appellant and other witnesses, that when appellant struck Officer Miller with his car appellant was "severely intoxicated from the effect of PCP" and that appellant "possessed no reason or understanding at the time of the crime."

The jury evidently rejected the voluntary intoxication defense and convicted appellant of the most serious offenses charged, including first degree and attempted first degree murder. At the sentencing phase, the judge found appellant eligible for the death penalty but concluded that mitigating factors warranted a life sentence instead.

I. Right to Effective Assistance of Counsel

Appellant alleges approximately eight different errors on the part of the post conviction court below. We have recast these claims of error in a roughly chronological order and for simplicity's sake have stated the first six claims in the form of alleged deficiencies of trial counsel:

A. Pretrial failure to investigate the findings of two forensic psychiatrists from the Medical Service of the Circuit Court for Baltimore City and another psychiatrist from the Clifton T. Perkins Hospital Center.

B. Pretrial failure to prepare appellant to testify on his own behalf.

C. Failure to deliver an effective opening statement.

D. Failure to present exculpatory medical records from the Baltimore City Jail.

E. Failure to produce Dr. Lee Richmond as a witness.

F. Failure to request jury instructions on depraved heart second degree murder and on the effect of expert testimony.

G. The cumulative effect of trial counsel's errors amounted to ineffective assistance of counsel.

H. The post conviction court erred when, in denying relief, it relied mainly on the fact that trial counsel did not testify as a witness at the post conviction hearings.

The basic right to the assistance of an attorney at a criminal trial is guaranteed by the Sixth Amendment to the United States Constitution, made applicable to states via the Due Process Clause of the Fourteenth Amendment. State v. Renshaw, 276 Md. 259, 264, 347 A.2d 219, 223 (1975). We have long recognized that the right to counsel entitles individuals to more than the mere presence of someone who happens to possess a law degree. Id. at 268, 347 A.2d at 226. The right to counsel is the right to effective assistance of counsel, the benchmark of which is whether counsel's advocacy was sufficient to maintain confidence that the adversarial process was capable of producing a just result. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063-64, 80 L.Ed.2d 674 (1984). In reviewing a claim of ineffective assistance of counsel, we apply the test announced by the Supreme Court in Strickland. Accordingly, one claiming ineffective assistance of counsel must demonstrate both that her counsel's performance was deficient and that the deficient performance prejudiced her defense. Id. at 687, 104 S.Ct. at 2064; Oken v. State, 343 Md....

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