Mendes v. State

• Decision Date: 03 September 2002
• Docket Number: No. 1004,1004
• Citation: 806 A.2d 370,146 Md. App. 23
• Parties: Fortunato J. MENDES v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

806 A.2d 370

146 Md. App. 23

Fortunato J. MENDES v. STATE of Maryland.

No. 1004, Sept. Term, 2001.

Court of Special Appeals of Maryland.

September 3, 2002.

Fred Warren Bennett (Booth M. Ripke and Bennett & Nathans, LLP on the brief), Greenbelt, for appellant.

Celia Anderson Davis, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Frank Weathersbee, State's Atty. for Anne Arundel County, Annapolis, on the brief), for appellee.

Argued before SALMON, DEBORAH S. EYLER and RAYMOND G. THIEME, JR. (Ret'd, Specially Assigned), JJ. RAYMOND G. THIEME, Jr., Judge, Ret'd, Specially Assigned.

In this appeal, we are asked to determine whether the Circuit Court for Anne Arundel County (Heller, J.) erred by denying post-conviction relief to Fortunato J. Mendes, the appellant, on the ground that his trial counsel was ineffective.

Appellant was convicted by a jury on September 1, 1989, of first degree murder and use of a handgun in the commission of a crime of violence. He is currently serving concurrent prison sentences of life without the possibility of parole for the murder conviction and 15 years for the handgun conviction. An earlier, direct appeal to this Court was unsuccessful.¹

On April 21, 1997, appellant petitioned the circuit court for post-conviction relief.² After a six-day hearing, the court denied relief. Appellant applied for leave to appeal to this Court, and we granted the application on June 20, 2001.

QUESTIONS PRESENTED

Appellant now presents the following questions:

I. Whether the post-conviction court erred in concluding that [a]ppellant's trial counsel did not provide constitutionally ineffective assistance at the suppression hearing.

II. Whether the post-conviction court erred in concluding that [a]ppellant's trial counsel did not provide constitutionally ineffective assistance by failing to call an essential defense witness....

III. Whether the post-conviction court erred in concluding that [a]ppellant's trial counsel did not provide constitutionally ineffective assistance in failing to properly investigate an alibi witness before presenting the witness to the jury.

IV. Whether the post-conviction court erred in concluding that [a]ppellant's trial counsel did not provide constitutionally ineffective assistance in regard to [a]ppellant's appearance before the jury in leg irons, shackles, and chains.

V. Whether the post-conviction court erred in concluding that the cumulative effect of all the errors by [a]ppellant's trial counsel did not collectively prejudice [a]ppellant sufficient[ly] to deny him constitutionally effective assistance.

We answer all five questions in the negative and affirm the judgment of the post-conviction court.

FACTS

On June 15, 1988, appellant was a practicing attorney in Washington, D.C. He was also scheduled to go on trial the next day, June 16, 1988, for distribution of cocaine. The victim, Davide Diggs,³ was to have been a witness against him.

A gunman ambushed Diggs on the morning of June 15, 1988, as Diggs left his home in the Oyster Harbor area of Anne Arundel County to go to work. The gunman chased Diggs a short distance, then shot him three times in the back and once in the arm.

Diggs's mother, Madeline Stokes, heard Diggs shout, "Oh, no," and then heard shots. Stokes looked out the window in time to see a man chasing her son across the yard. Stokes only saw the man from behind.

Stokes ran outside to her son, noticing that the assailant was gone. Stokes asked Diggs who had shot him, and Diggs replied "the lawyer." Stokes asked Diggs if he meant "Fortunato, the lawyer," and he answered "yes." With varying degrees of certainty, five other witnesses identified appellant as someone they had seen at or near the scene of the shooting.

STANDARD OF REVIEW

It is well established that the right to counsel guaranteed by the Sixth Amendment to the United States Constitution, and made applicable to the states through the Due Process Clause of the Fourteenth Amendment, encompasses "`the right to the effective assistance of counsel.'" Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (citations omitted; emphasis added). See also Redman v. State, 363 Md. 298, 309-10, 768 A.2d 656,

cert. denied, ___ U.S.___, 122 S.Ct. 140, 151 L.Ed.2d 92 (2001); Oken v. State, 343 Md. 256, 283-84, 681 A.2d 30 (1996); State v. Jones, 138 Md.App. 178, 204-05, 771 A.2d 407,

cert. granted, 365 Md. 266, 778 A.2d 382 (2001); Cirincione v. State, 119 Md.App. 471, 484, 705 A.2d 96 (1998). "The benchmark for judging any claim of ineffective assistance must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686,

104 S.Ct. 2052.

In Strickland, 466 U.S. at 687, 104 S.Ct. 2052, the Supreme Court established a two-pronged test for determining whether counsel's assistance was so defective as to require reversal.

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction... resulted from a breakdown in the adversary process that renders the result unreliable.

"Maryland has consistently applied the Strickland test in deciding whether counsel has rendered constitutionally ineffective assistance." Jones, 138 Md.App. at 205, 771 A.2d 407. See also Johnson v. State, 142 Md.App. 172, 788 A.2d 678 (2002)

. As this Court has summarized:

To establish that trial counsel's representation "was so deficient as to undermine the adversarial process," ... a defendant must show that: (1) under the circumstances, counsel's acts resulted from unreasonable professional judgment, meaning that "counsel's representation fell below an objective standard of reasonableness," and (2) that the defendant was prejudiced, because "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."

Jones, 138 Md.App. at 206, 771 A.2d 407 (citations omitted; emphasis in original). "To establish the requisite degree of prejudice in Maryland, the defendant must demonstrate a `substantial possibility that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 207-08, 771 A.2d 407 (citation omitted). "[A] `"proper analysis of prejudice"` includes consideration of `"whether the result ... was fundamentally unfair or unreliable."'" Id. at 208, 771 A.2d 407 (citations omitted).

"Ineffectiveness is not a question of `basic, primary, or historical fac[t]'.... Rather, ... it is a mixed question of law and fact." Strickland, 466 U.S. at 698,104 S.Ct. 2052 (citations omitted). In reviewing a decision regarding a claim of ineffective assistance of counsel, an appellate court "will not disturb the factual findings of the post-conviction court unless they are clearly erroneous." Wilson v. State, 363 Md. 333, 348, 768 A.2d 675 (2001).

But, a reviewing court must make an independent analysis to determine the "ultimate mixed question of law and fact, namely, was there a violation of a constitutional right as claimed." ... In other words, the appellate court must exercise its own independent judgment as to the reasonableness of counsel's conduct and the prejudice, if any.... "Within the Strickland framework, we will evaluate anew the findings of the lower court as to the reasonableness of conduct and the prejudice suffered.... As a question of whether a constitutional right has been violated, we make our own independent analysis by reviewing the law and applying it to the facts of the case."

Jones, 138 Md.App. at 209, 771 A.2d 407 (citations omitted). Like the post-conviction court, we keep in mind that, "[w]ith the benefit of hindsight, ... it is all too easy to mistake a sound but unsuccessful strategy for incompetency...." Cirincione, 119 Md.App. at 485, 705 A.2d 96. "[F]or this reason, we `indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Id. (citation omitted). "Furthermore, our review of the Strickland elements of ineffective assistance need not be taken up in any particular order. In other words, we need not find deficiency of counsel in order to dispose of a claim on the grounds of a lack of prejudice." Id. at 485-86, 705 A.2d 96.

DISCUSSION

I Motion to Suppress

One day after the shooting, Detective Dirk Rinehart of the Anne Arundel County Police Department prepared a photo array ("the first array") depicting six persons, which he showed to several witnesses. This first array, comprised of black and white frontal and profile shots of each of the six persons, included year-old photos of appellant that the detective had obtained from another police department. Following appellant's arrest, Detective Rinehart took a new photo of appellant and included it in a second photo array ("the second array"), which was comprised of color, frontal shots of six persons. The second array was shown to various witnesses as well.⁴

Prior to trial, appellant moved to suppress evidence that several witnesses had selected appellant's photo from one or both of the arrays as someone they had seen at or near the crime scene. A hearing was held, and defense counsel argued that the identification procedure was suggestive in that: only six photos were used in each array; the complexions and ages of the persons in the arrays were dissimilar; the photo of appellant used in the first array was printed on newer paper...