Mosley v. State

• Decision Date: 26 November 2003
• Docket Number: No. 16,16
• Citation: 378 Md. 548,836 A.2d 678
• Parties: Lawrence MOSLEY v. STATE of Maryland.
• Court: Maryland Court of Appeals

836 A.2d 678

378 Md. 548

Lawrence MOSLEY v. STATE of Maryland.

No. 16, Sept. Term, 2003.

Court of Appeals of Maryland.

November 26, 2003.

Allison E. Pierce, Julia Doyle Bernhardt, Asst. Public Defenders (Stephen E. Harris, Public Defender, on brief), for petitioner.

Mary Ann Ince, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), for respondent.

Argued before BELL, C.J., ELDRIDGE,¹ RAKER, WILNER, CATHELL, HARRELL, and BATTAGLIA, JJ BATTAGLIA, Judge.

Lawrence Mosley asks this Court to review a decision rendered by the Court of Special Appeals that he was not denied effective assistance of counsel when his counsel did not articulate insufficiency of the evidence as a specific basis for a motion for judgment of acquittal. For the reasons stated below, we conclude that the Court of Special Appeals should not have reviewed Mosley's claim on direct appeal. I. Background

A. Facts

On January 13, 2001, at 12:45 a.m., Yvonne Bellamy and Angela Fields left a Chinese restaurant located in Baltimore. A man, later identified by the victims as Lawrence Mosley, approached them from behind and grabbed Ms. Fields while holding a weapon that appeared to be a gun to her back, threatening to kill both women if they did not cooperate with him. Mosley then took a purse, a back-pack, and their Chinese food and ordered them to walk away through a parking lot. As they began walking away, he told them to stop. He again approached the women, waving the weapon in the air, and began walking with them. He did so after two other people approached them through the parking lot. The two people turned out to be plainclothes police officers, Agent Kevin Allis and Officer Donna Jackson, working in the area, who had witnessed the events of the robbery and had called for backup.

When the backup subsequently arrived, Mosley released the women and began to run with the weapon in his hand toward Agent Allis, who then pulled his badge and gun out. Mosley dropped the weapon, which was admitted as State's Exhibit 1-A at trial. Agent Allis and Officer Jackson both identified State's Exhibit 1-A as the weapon used by Mosley, which they characterized as an "air gun." Agent Allis testified that he realized the weapon was plastic when Mosley dropped it. Exhibit 1-A was available to the jurors during their deliberations.

On March 7, 2002, Lawrence Mosley was convicted in the Circuit Court for Baltimore City of two counts of second degree assault, two counts of robbery, two counts of wearing or carrying a dangerous weapon, and two counts of robbery with a dangerous or deadly weapon. He was sentenced to two thirteen-year terms of imprisonment, which were to be served concurrently.

B. Appellate Procedural History

Mosley appealed to the Court of Special Appeals on March 11, 2002, raising a single issue for review. He argued that he had been denied effective assistance of counsel because his counsel had failed to state with particularity the grounds for the motion for judgment of acquittal made at the close of all the evidence. The evidence regarding the air gun, Mosley maintained, was insufficient to support his convictions for robbery with a dangerous or deadly weapon and wearing or carrying a dangerous weapon, and he argued that his counsel had failed to raise this point specifically, with the result that the issue of the insufficiency of the evidence relating to the dangerousness of the air gun was not preserved for appellate review. The State opposed Mosley's appeal, arguing that the issue of ineffective counsel should be resolved in a post-conviction proceeding.

When the record was transmitted to the Court of Special Appeals on May 10, 2002, however, the air gun was not included. Mosley filed a motion to correct the record, which the Court of Special Appeals granted. It appeared that the air gun, which was to be transmitted to the Court of Special Appeals, had been stolen from the trunk of Agent Allis's car. With the gun now lost, in support of his appeal, Mosley secured and filed affidavits of the Assistant State's Attorney, Mosley's trial counsel, and the trial judge as to their recollections of the gun's physical characteristics. Only the Assistant State's Attorney remembered the gun, stating in his affidavit that it was a "plastic air gun," "heavy," "weighed approximately ten pounds," and was "between seven and nine inches in length." The Court of Special Appeals, in an unreported opinion, held that "the evidence was sufficient to sustain [Mosley's] convictions for robbery with a deadly weapon and wearing and carrying a concealed dangerous weapon" as well as concluded that Mosley's ineffective assistance of counsel claim "must be decided in a post-conviction proceeding."²

We granted Mosley's petition for writ of certiorari, presenting the following questions for our review:

1. Did the Court of Special Appeals have the authority on direct appeal to decide whether Petitioner's trial counsel rendered ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights when he failed to argue with particularity the motion for judgment of acquittal after the State offered no evidence that the toy gun used in the robbery qualified as a dangerous or deadly weapon?

2. Given the conflicting statements contained in the Court of Special Appeals's opinion, did the Court actually address Petitioner's ineffective assistance of counsel claim, and, if the Court did address the merits of his claim, is its decision incorrect in light of the fact that the State lost the toy gun before it was transmitted to the Court and the Court subsequently failed to draw inferences about the gun in favor of Petitioner and instead based its decision solely on an affidavit by the Assistant State's Attorney which gave an implausible description of the gun?

Although the State opposed direct review of Mosley's claim in the Court of Special Appeals, the State argues before us that the Court of Special Appeals correctly found that Mosley was not denied effective assistance of counsel. The State also maintains that the Court of Special Appeals properly based its decision on the affidavit of the Assistant State's Attorney.

III. Discussion

A. The Strickland Analysis

The Sixth Amendment to the United States Constitution,³ applicable to the states through the Fourteenth Amendment, and Article 21 of the Maryland Declaration of Rights⁴ guarantee criminal defendants the right to the assistance of counsel at critical stages of the proceedings. United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 2047, 80 L.Ed.2d 657, 668 (1984); Strickland v. Washington, 466 U.S. 668, 684-85, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674, 691 (1984); Gideon v. Wainwright, 372 U.S. 335, 343, 83 S.Ct. 792, 796, 9 L.Ed.2d 799, 805 (1963); Glasser v. United States, 315 U.S. 60, 69-70, 62 S.Ct. 457, 464-65, 86 L.Ed. 680, 699 (1942); Lettley v. State, 358 Md. 26, 33, 746 A.2d 392, 396 (2000); State v. Wischhusen, 342 Md. 530, 537, 677 A.2d 595, 598 (1996)(discussing the constitutional right to counsel at "critical stages" of the criminal case); Austin v. State, 327 Md. 375, 381, 609 A.2d 728, 730-31 (1992); Harris v. State, 303 Md. 685, 695 n. 3, 496 A.2d 1074, 1079 n. 3 (1985)(stating "[t]his Court has not distinguished between the right to counsel guaranteed by the Sixth and Fourteenth Amendments and the right provided by Art. 21 of the Maryland Declaration of Rights") (hereinafter "Harris III"). Integral to this right is the right to effective assistance of counsel. See Kimmelman v. Morrison, 477 U.S. 365, 377, 106 S.Ct. 2574, 2584, 91 L.Ed.2d 305, 321 (1986)

; Strickland, 466 U.S. at 686,

104 S.Ct. at 2063,

80 L.Ed.2d at 692; In re Parris W., 363 Md. 717, 724, 770 A.2d 202, 206 (2001); State v. Tichnell, 306 Md. 428, 440, 509 A.2d 1179, 1185 (1986).

The Supreme Court established in Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693, that a defendant must prove that counsel's competence failed to meet an objective standard of reasonableness and that counsel's performance prejudiced the defense in order to be successful in an ineffectiveness of counsel claim. See also In re Parris W., 363 Md. at 725, 770 A.2d at 206

. This two-pronged test serves to correct the adversarial process when it has failed to render a reliable trial result. Strickland, 466 U.S. at 687,

104 S.Ct. at 2064,

80 L.Ed.2d at 693 (stating that "[u]nless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable"). When a defendant is denied effective assistance of counsel, it is the integrity of the adversarial process that is compromised. Id. at 686, 104 S.Ct. at 2064,

80 L.Ed.2d at 692-93 (stating that "[t]he benchmark for judging any claim of ineffectiveness 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").

With respect to the first prong, the Strickland court explained that "the proper standard for attorney performance is that of reasonably effective assistance." Id. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. "Prevailing professional norms" define what constitutes reasonably effective assistance, and all of the circumstances surrounding counsel's performance must be considered. Id. at 688, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. Because it is "tempting" for both a defendant and a court to second-guess a counsel's conduct after conviction, courts must be "highly deferential" when they scrutinize counsel's performance. Id. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. Reviewing courts must thus assume, until proven otherwise, that counsel's conduct fell within a broad range of reasonable professional judgment, and that counsel's conduct derived not from error but...