Jones v. State

• Decision Date: 18 February 2004
• Docket Number: No. 57,57
• Citation: 379 Md. 704,843 A.2d 778
• Parties: Thomas Wayne JONES v. STATE of Maryland.
• Court: Maryland Court of Appeals

843 A.2d 778

379 Md. 704

Thomas Wayne JONES v. STATE of Maryland.

No. 57, Sept. Term, 2001.

Court of Appeals of Maryland.

February 18, 2004.

Reconsideration Denied April 2, 2004.

Fred Warren Bennett (Booth Marcus Ripke, Bennett & Nathans, LLP, on brief), Greenbelt, for petitioner.

Celia Anderson Davis, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), for respondent.

Argued before BELL, C.J., ELDRIDGE,¹ RAKER, WILNER, CATHELL, BATTAGLIA, THEODORE G. BLOOM (retired, specially assigned), JJ.

RAKER, J.

Petitioner presents a single question for review in this Court: Whether the Court of Special Appeals exceeded the outer limits of its discretion by improperly excusing the State's procedural default and remanding this case to the circuit court for further proceedings. This case is a post-conviction proceeding. The primary question before the post-conviction hearing court was whether trial counsel was ineffective for failing to object at trial to the admissibility of a hearsay statement. We hold that the Court of Special Appeals has the discretion, in the context of a post-conviction proceeding, to excuse a procedural default or waiver and did not abuse its discretion in this instance.

In December 1996, petitioner Thomas Wayne Jones was tried and convicted in the Circuit Court for Prince George's County of the first degree felony murder of Gary Gulston and other related offenses, including kidnapping, robbery with a deadly weapon, and use of a handgun in a felony. The trial court sentenced Jones to life without the possibility of parole for the felony murder conviction and consecutive terms of twenty years each for the handgun and armed robbery offenses; the remaining offenses were merged for sentencing purposes. In an unreported opinion, the Court of Special Appeals affirmed the conviction. Jones filed no appeal from that judgment.

In November 1998, Jones filed a petition for post-conviction relief pursuant to the Maryland Post Conviction Procedure Act, Md.Code (1957, 1996 Repl.Vol.) Art. 27, § 645A,² alleging that he had received ineffective assistance of trial and appellate counsel in violation of his constitutional rights under the Sixth and Fourteenth Amendments to the United States Constitution. As one of his bases for post-conviction relief, Jones argued that his trial and appellate counsel were constitutionally deficient because they failed to object to the admissibility of a hearsay statement contained within the written statement of Derrick Smith, a State witness. At Jones's trial, Smith in a written statement³ had described how he, Jones, and Don Gutrick, another participant in the criminal episode, had planned and committed the robbery of Gary Gulston's home that resulted in the felony murder for which Jones was convicted. Within the written statement, Smith stated that Gutrick had told him that "we killed him," meaning that Gutrick and Jones had killed Gary Gulston. Because Jones's counsel never objected to the admissibility of this incriminating statement by Gutrick as hearsay contained within Smith's written statement, Jones claimed in his post-conviction petition that he received ineffective assistance of counsel at trial. The post-conviction court that adjudicated Jones's petition agreed with Jones and issued an order granting Jones a new trial, stating that "[Jones's counsel's] trial performance, although generally excellent, did fall below a standard of reasonableness when he failed to object to [Don Gutrick's statement]."

The State filed an Application for Leave to Appeal to the Court of Special Appeals pursuant to the Uniform Post Conviction Procedure Act, Md.Code (2001, 2003 Cum. Supp.) § 7-109 of the Criminal Procedure Article. The State presented several legal arguments for the admissibility of the incriminating statement, among which was the argument that Don Gutrick's remark was "clearly admissible as a statement of a coconspirator made during the course of and in furtherance of the conspiracy." See Maryland Rule 5-803(a)(5); Perry v. State, 344 Md. 204, 231-35, 686 A.2d 274, 287-89 (1996). This argument had not been raised in the post-conviction court, nor was it raised in the State's opening brief to the intermediate appellate court. In its reply brief, however, the State again stated the co-conspirator exception to the hearsay rule as an alternative theory for the statement's admissibility. Because of the State's failure to raise this theory initially upon appeal, Jones's counsel filed a motion to strike that portion of the State's reply brief. The Court of Special Appeals agreed, and found that the legal theory, raised for the first time in the reply brief, was not properly before the court and therefore would not be considered on the merits by that court.

After the Court of Special Appeals affirmed the decision of the post-conviction court, the State filed a Motion to Reconsider, arguing that the court had erred in refusing to consider the co-conspirator exception theory presented in the Application for Leave to Appeal and the reply brief. Although the Court of Special Appeals rejected the legal grounds of the State's motion, it revised its opinion and, in the exercise of its discretion, ordered a limited remand so that the post-conviction court might determine whether the hearsay statement was admissible under the co-conspirator exception to the hearsay rule. The Court of Special Appeals explained its action as follows:

"The cases cited above elucidate for us that, in a criminal case, the State can be found to have waived a valid claim, even if the waiver leads to the reversal of a conviction. On the other hand, when the State fails to raise an important argument, an appellate court ordinarily has discretion to review the record or the trial judge's ruling in its effort to reach a sound result. Similarly, the appellate court generally retains discretion to consider an argument that is belatedly raised.

"In light of the importance of the issue presented with regard to the co-conspirator exception, we have determined, in the exercise of our discretion, that a remand is appropriate, so that the parties will have an opportunity to fully litigate before the post-conviction court the question of whether Gutrick's statement was admissible under the co-conspirator exception to the hearsay rule. Moreover, we believe a remand is appropriate because resolution of the issue in the context of a post-conviction proceeding will require careful analysis of the entire record, appropriate briefing, and, perhaps, further examination of defense counsel and appellate counsel.

"In reaching our decision to remand, we perceive that this is not a case in which the State made a tactical decision to forego raising the co-conspirator exception.

Instead, it seems to have inadvertently omitted the argument from its initial brief after including it in the Application. Further, in contrast to some of the cases we have considered, the State eventually raised the co-conspirator issue in its reply brief; it did not fail altogether to raise the matter until after we ruled, as happened in some of the cases that we cited. Nor did it make the kinds of damaging or misleading concessions below that we saw in other cases that we discussed. To the contrary, the State has steadfastly maintained that Smith's entire statement was admissible and has persisted in its claim that Jones's conviction should be upheld."

State v. Jones, 138 Md.App. 178, 241-242, 771 A.2d 407, 444 (2001). Jones noted a timely petition for writ of certiorari, which we granted. 365 Md. 266, 778 A.2d 382 (2001).

Before this Court, petitioner contends the intermediate appellate court abused its discretion by considering the unpreserved issue and ordering the remand to the post-conviction court. He contends that by exercising its discretion to permit the post-conviction hearing court to determine the admissibility of the hearsay statement under the co-conspirator exception, the Court of Special Appeals effectively held the State to a lower standard for preservation of post-conviction and appellate arguments than it does for criminal defendants. Finally, petitioner argues that Maryland appellate courts have consistently applied the principle of waiver to preclude consideration of arguments raised belatedly, such as in this post-conviction proceeding in which the argument was raised for the first time in the reply brief. The end result, says petitioner, was an appearance of partiality by the intermediate appellate court and a second chance by the State to resurrect a dead argument.

The State claims that the co-conspirator argument belatedly raised in its reply brief was a subsidiary of its bedrock theory that trial counsel did not render ineffective assistance, a theory that the State properly raised and maintained throughout the post-conviction proceedings. The post-conviction court could not resolve the claim of ineffective assistance of counsel without first determining whether the hearsay statement would have been admissible in any event. Thus, it was not an abuse of discretion for the Court of Special Appeals to order a remand on an issue that was necessarily included within the State's overarching objection to Jones's ineffective assistance of counsel claim. If Jones's trial counsel could not have prevented admission of Smith's written statement in any event, then Jones could not win his Sixth Amendment claim. The action by the Court of Special Appeals, according to the State, was a routine exercise of appellate judicial discretion pursuant to Maryland Rule 8-131(a).

I.

The Court of Special Appeals exercised its authority twice when it ordered a remand to the post-conviction court. First, the court exercised its discretion to consider an unpreserved argument. Although that court did not address the merits of the State's theory under the co-conspirator exception, the court took up the belated argument implicitly when it...