Gross v. State, 130

CourtCourt of Appeals of Maryland
Citation809 A.2d 627,371 Md. 334
Docket NumberNo. 130,130
PartiesAlvin Winslow GROSS v. STATE of Maryland.
Decision Date11 October 2002

Fred Warren Bennett (Michael E. Lawlor of Bennett & Nathans, LLP, on brief), Greenbelt, for petitioner.

Celia Anderson Davis, Assistant Attorney General (Joseph Curran, Jr., Attorney General of Maryland, on brief), Baltimore, for respondent.

Argued before BELL, C.J., ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ RAKER, Judge.

Petitioner, Alvin Winslow Gross, filed a Petition for Postconviction Relief in the Circuit Court for Anne Arundel County. The Circuit Court granted him a new trial, based on Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and its progeny on the grounds that he was denied effective assistance of trial and appellate counsel. The Court of Special Appeals reversed, reinstating the judgments of conviction. State v. Gross, 134 Md.App. 528, 760 A.2d 725 (2000). We granted the petition for writ of certiorari to consider whether petitioner was denied effective assistance of counsel.

In the early morning hours of December 19, 1993, the body of a young woman was discovered in a cornfield in Anne Arundel County. The autopsy revealed that her blood alcohol content was .34% and her urine alcohol content was .42%. When her body was found, she was nude from the waist up, her underwear was wrapped around one leg, and she had on no shoes, blouse, bra, or coat. The cause of death was four gunshot wounds—two to her neck and two to her chest. There was no purse or identification with the body. The victim was identified several days later as Margaret Ruth Courson when a friend recognized her from a photograph that appeared in the local Annapolis newspaper.

The victim had last been seen near the City Dock in Annapolis, at approximately 3:30 a.m., on December 19, 1993. The cornfield where her body was discovered three hours later was approximately twenty miles away from the City Dock area of Annapolis.

In response to media releases on December 20, 1993, the police received several telephone calls identifying petitioner, Alvin Winslow Gross, as the murderer. On December 31, 1993, they received an anonymous telephone call stating that Sidney Scott, Jr. and two other black men were involved in the murder. On January 6 and 7, 1994, the police spoke with three anonymous informants who implicated petitioner, among others, in the murder.

On January 10, 1994, the police executed search warrants for petitioner's person, car, and residence. During the search of petitioner's car, police found physical evidence linking the victim to petitioner's vehicle. They found a notebook containing handwriting matching that of the victim and fingerprints of the victim on nine separate pages. The police also found two head hairs and one pubic hair in petitioner's automobile, which were later identified as belonging to the victim. In addition, police gathered carpet fibers from the floor mats in petitioner's automobile, which were subsequently matched to fibers found on several items of clothing worn by the victim on the night of the murder and found in combings of her pubic hair.

On the same day, petitioner was arrested and transported to the police station, where samples of his blood, hair, and saliva were obtained and submitted to the crime laboratory for DNA testing.1 A vaginal swab was also taken from the victim's body and examined for possible DNA traces. Initially, the laboratory attempted to perform DNA Restriction Fragment Length Polymorphism ("RFLP") analysis, but there was not enough genetic material present to obtain results with that method. The laboratory then performed a DNA Polymerase Chain Reaction ("PCR") amplification, which can be performed on a smaller DNA sample, followed by an analysis of the DQ Alpha region of the chromosome ("DQA"). See State v. Isley, 262 Kan. 281, 936 P.2d 275, 279 (1997)

.

Prior to trial, petitioner moved in limine to exclude the DNA/PCR evidence on two grounds: first, that PCR analysis was generally not accepted in the scientific community and, therefore, not admissible; and, second, that the test results were inadmissible because the laboratory had not produced population genetics statistics to accompany the lab results and that, absent these statistics, the results of the test were meaningless. At the hearing on the pre-trial motion, the defense called as an expert witness, Dr. Walter Rowe, a professor of forensic sciences. The trial court admitted Dr. Rowe as an expert to testify about population statistics in a general sense but did not accept him as an expert in the field of DNA or DNA/PCR analysis. The trial court denied petitioner's motion in limine.

The bullets removed from the victim's body were too mutilated for a ballistics match, but the State's firearms identification expert testified at trial that they were.32 caliber bullets that could have been fired from one of five probable makes of revolvers, including one manufactured by Rossi. The police later recovered a Rossi revolver that petitioner had turned over to Troy King in early January 1994. King was a close personal friend of petitioner's for several years and was not in any way a suspect in the case. Although the ballistics expert could not state that the four bullets had been fired from petitioner's revolver, he did testify that they were compatible with it.

At trial, Troy King testified that, during the last week of December 1993, petitioner had discussed the Courson murder with him, telling him during a telephone conversation that he had been doing "crazy things" lately, that he and Sidney Scott were with the victim on the night of December 19, 1993, and that they both shot and killed her. King testified that petitioner had told him that he and Scott had picked up the victim and that they felt they had to kill her because they were afraid that the victim would identify them. King also testified that, early in January 1994, he, his cousin Charles Carpenter, and petitioner had gone out to a night club in Washington, D.C. Both King and Carpenter testified that petitioner gave King a.32 caliber Rossi revolver from his car and asked King to keep it for him. Both also testified that, at the time that petitioner gave the revolver to King, he had warned King to be careful with it because "it already has one life on it."

The State also called as a witness Angela Nicolson, King's fiancee. She testified that she found a handgun in the apartment that she shared with King and that, after petitioner's arrest, she turned the gun over to police.

The State introduced other physical evidence linking the victim to petitioner. This evidence included hair found in a notebook in petitioner's car. Both the notebook and hair sample belonged to the victim. Fibers from petitioner's car mats were found on the victim's clothing.

The State presented evidence that DNA samples were collected from the victim's body and testing using the PCR DQA method. Two DNA experts from Cellmark Diagnostic Laboratory, Melissa Weber and Charlotte Word, testified at trial regarding the PCR DQA testing. At trial, the defense moved in limine, before the State's Cellmark DNA experts testified, to prevent the State from entering evidence of population frequency statistics. Defense counsel did not object to, or move to strike, the experts' testimony regarding the DNA laboratory results without accompanying statistical data. Dr. Weber testified that all that could be extrapolated from the PCR tests that were performed was that petitioner could not be excluded from the class of persons who possibly could have been a source of the DNA samples recovered from the victim. Word confirmed in her testimony that PCR testing cannot produce a "match" in the sense of a unique identification. Neither Weber nor Word, however, testified regarding the statistical significance of petitioner's DNA match.

Petitioner testified in his defense at trial. His defense was alibi. He denied any involvement in the murder, admitting that he had sexual intercourse with the victim, but claiming that it was consensual and occurred the evening before the murder. He also testified that he gave the revolver to Troy King, claiming, without further explanation, that Sidney Scott had given it to him in December. He testified that, because he had no use for the gun, he had given it to King, who collected guns, as a gift.

On December 8, 1994, petitioner was convicted by a jury in the Circuit Court for Anne Arundel County of first degree felony murder, first degree rape, kidnapping, and the use of a handgun in the commission of a crime of violence. He was sentenced to a term of imprisonment of life without the possibility of parole for murder, with concurrent sentences of twenty-five years for rape, twenty-five years for kidnapping, and fifteen years for the use of a handgun in the commission of a felony.

Petitioner noted a timely appeal to the Court of Special Appeals, raising a multitude of issues. In an unreported opinion, the Court of Special Appeals held that the evidence was insufficient to sustain petitioner's conviction for kidnapping, affirmed the judgments of conviction for murder and the handgun violation, and merged the rape conviction into the felony murder conviction for sentencing purposes. This Court denied Gross' petition for writ of certiorari. Gross v. State, 343 Md. 333, 681 A.2d 68 (1996).

On August 18, 1997, in the Circuit Court for Anne Arundel County, petitioner filed a Petition for Postconviction Relief pursuant to the Uniform Post Conviction Procedure Act, Maryland Code (1957, 1996 Repl.Vol.) Article 27, § 645A (current version at Maryland Code (1957, 2001 Repl.Vol.) § 7-101 et seq. of the Criminal Procedure Article). He alleged ineffective assistance of trial counsel, ineffective assistance of appellate counsel, and trial court error. At the postconviction hearing, he...

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