In re Parris W.

• Decision Date: 16 April 2001
• Docket Number: No. 87,87
• Citation: 363 Md. 717,770 A.2d 202
• Parties: In re PARRIS W.
• Court: Maryland Court of Appeals

770 A.2d 202

363 Md. 717

In re PARRIS W.

No. 87, Sept. Term, 2000.

Court of Appeals of Maryland.

April 16, 2001.

Amy E. Brennan, Julia Doyle Bernhardt, Asst. Public Defenders (Stephen E. Harris, Public Defender, and Daniel H. Weiss, Asst. Public Defender, on brief) Baltimore, for petitioner.

Mary Ann Ince, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of Maryland, and Steven L. Holcomb, Asst. Atty. Gen., on brief) Baltimore, for respondent.

Argued before ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA, and LAWRENCE F. RODOWSKY, (retired, specially assigned), JJ.

RAKER, Judge

In the Circuit Court for Prince George's County, sitting as the juvenile court, Appellant, Parris W., a juvenile, was found to have committed acts that, had he been an adult, would have constituted the offense of assault in the second degree upon a school mate. Appellant's defense to the delinquency petition was alibi. During his adjudicatory hearing, Appellant's father testified that his son had been with him all day, including at the time that the assault was alleged to have occurred. The question presented in this appeal is whether Appellant was denied the right to effective assistance of counsel by his trial counsel's error in issuing subpoenas for five corroborating witnesses for the wrong date, when the witnesses would have testified to seeing Appellant with his father at different points throughout the day on which the assault was committed. We shall hold that, under the circumstances presented herein, defense counsel's failure to subpoena the witnesses for the correct day constituted deficient performance and prejudiced Appellant's defense; we shall, therefore, reverse the judgment.

I.

On the afternoon of April 27, 1999, Trenton Anton Morton was standing at the bus stop in front of his school, Thurgood Marshall Middle School in Temple Hills, Maryland, talking to friends who were on the school bus and getting ready to get on the bus to go home after school. Someone approached Morton from behind, punched him once on the right side of his face, and ran away. Morton attempted to chase the assailant, but eventually stopped when he was unable to catch up to him.

On July 28, 1999, the State filed a delinquency petition against Appellant, Parris W., for assault and trespass. Appellant failed to appear at the first scheduled adjudicatory hearing on October 21, 1999. At the second scheduled adjudicatory hearing on December 23, 1999, Appellant's counsel requested a continuance on the grounds that the State had provided the wrong offense date in its discovery responses, so that counsel only discovered the actual date of the offense on the morning of the hearing, a date for which Appellant claimed to have an alibi defense. Appellant's counsel requested the continuance in order to summons the alibi witnesses and provide notice of alibi witnesses to the State pursuant to Maryland Rule 4-263(d)(3). Appellant's counsel proffered, at that time, that Appellant had been with his father the entire day of the assault, accompanying him on his delivery route for work. The hearing was continued until January 20, 2000. On December 27, 1999, however, the court sent a scheduling notice to Appellant's counsel setting the hearing for January 21, 2000. On January 5, 2000, Appellant sent notice to the State of five alibi witnesses.

On January 21, 2000, Appellant's counsel again requested a continuance on the grounds that he had mistakenly believed that the hearing was still scheduled for January 20th and had subpoenaed a number of alibi witnesses in the case for the wrong day. He requested the continuance in order for the witnesses to be present. The witnesses were two employees of Faith Office Products, where Appellant's father, Mr. W., worked, one customer to whom Mr. W. made deliveries on the day of the assault, as well as two of Mr. W.'s friends, Jeffrey Taylor and Diane Cary. Defense counsel told the court:

Your Honor, we would like to make a request for a continuance due to an error on counsel's part. That is me. I got the date wrong for today's hearing. I thought it was yesterday.

I issued a number of subpoenas for yesterday to witnesses in this case. These folks, the ones we've been able to contact, are not able to come in today. They were prepared to come yesterday. We would request a continuance so we can get those people in.

The people involved are Jeffrey Taylor from D.C., a Diane Cary, and a Tracy Robb from Faith Office Products in D.C., and a Florence Garrett at the same office. These are all adults. They're all working, and they could not make arrangements to get off today.

The State opposed the continuance. Although the prosecutor conceded that his court jacket indicated that the continued hearing was set for January 20, 2000, he proffered that he had "checked the computer," which had indicated that the new hearing date was January 21, 2000, that all of the State's subpoenas had been issued for January 21st, and that the State's three potential witnesses were present. The court denied the continuance on the grounds that the matter had been scheduled several times and had been continued on a prior occasion.

At the adjudicatory hearing, Morton was the State's sole witness. He identified Appellant as the assailant and testified that he knew Appellant because he had been in a few of his classes. Morton testified that, although he did not see Appellant's face at the time of the assault, he saw Appellant running from behind, and he could identify him because he saw the side of his face as he turned the corner and because he recognized Appellant's clothing, which he had worn previously during the school year. Morton testified that, a few months before the incident that was the subject of the adjudication, Appellant had pulled a knife on him and that Morton had reported him to the principal, resulting in Appellant's expulsion from school.

The only witness called on Appellant's behalf was his father, Anthony W. Mr. W. testified that, on the day of the assault, he had brought his son back to school for a 9:00 a.m. meeting regarding the termination of his three-month expulsion, pursuant to a document from Thurgood Marshall Middle School requesting that Appellant report back to school on that date. Mr. W. said that the vice principal had refused to allow his son to return to school as scheduled because Mr. W. had failed to fill out some required community service paperwork, so he took his son with him on his delivery rounds. Mr. W. testified that he and his son left the school at 9:25 a.m., went to his office in northwest Washington, D.C. from approximately 10:00 to 10:30 and that, after that, he loaded several cases of copy paper into his van. He and his son then made a delivery to northeast Washington, D.C. and, immediately thereafter, they went to the house of a friend, Jeffrey Taylor, in southeast Washington, where they stayed from approximately 11:00 a.m. to 1:45 p.m. He testified that, after that, he and his son went to the apartment of a friend, Diane Cary, in Greenbelt, where they arrived at approximately 2:15 p.m. He said that Ms. Cary was not at home, but that he and his son went inside, and his son played video games while he talked to Ms. Cary on the phone. Mr. W. testified that they were at Ms. Cary's apartment continuously for the rest of the day, until approximately 11:00 p.m. He testified that Ms. Cary arrived home around 4:30. Mr. W testified that his son never left his sight during the time that they were at Ms. Cary's apartment and that he did not drive him to Thurgood Marshall Middle School in Temple Hills, which he believed was about thirty miles away and would take approximately thirty to forty minutes to reach by car, depending on traffic. He was able to see his son in Ms. Cary's bedroom every time that he walked down the hallway, and his son was unable to drive a car.

On cross-examination and later in closing argument, the State emphasized that Mr. W. was biased—that, as Appellant's father, he had an incentive to provide him with a false alibi for the assault. Ultimately, the court found that Morton was credible, based upon his recognition of Appellant from the side and of his clothing. The court further found that there was no reason presented why Morton would fabricate his testimony if the assault did not happen the way that he testified. The court, therefore, found beyond a reasonable doubt that Appellant had committed the assault as alleged. Appellant was placed under the supervision of the Department of Juvenile Justice, released to the care and custody of his father, and ordered to serve five consecutive weekends at Cheltenham and to perform certain conditions of probation.

Appellant noted a timely appeal to the Court of Special Appeals. This Court issued a writ of certiorari before consideration in the Court of Special Appeals in order to determine whether claims of ineffective assistance of counsel, which are plain on the record, may be raised on direct appeal from a finding of juvenile delinquency and, if so, whether Appellant was denied the effective assistance of counsel.

II.

Appellant argues that he was denied effective assistance of counsel by his attorney's failure to subpoena properly the necessary alibi witnesses for trial. He contends that their testimony was critical to the success of his alibi defense and that his counsel's failure to produce them deprived him of a fair trial. Appellant argues that, because counsel's deficient performance was plain and confessed, this Court should reverse the judgment on direct review based on the trial record.

The State argues that Appellant's claim of ineffective assistance of counsel is not preserved for appellate review because it was not raised before the juvenile court and because there is an inadequate evidentiary record on direct appeal to support the claim. The State argues that Appellant must raise his claim pursuant to the Maryland Post...