Redman v. State

• Decision Date: 09 March 2001
• Docket Number: No. 39,39
• Citation: 363 Md. 298,768 A.2d 656
• Parties: Joseph Marlo REDMAN v. STATE of Maryland.
• Court: Maryland Court of Appeals

768 A.2d 656

363 Md. 298

Joseph Marlo REDMAN v. STATE of Maryland.

No. 39, Sept. Term, 2000.

Court of Appeals of Maryland.

March 9, 2001.

Margaret L. Lanier, Assistant Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner.

Ann N. Bosse, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, on brief), Baltimore, for respondent.

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

RAKER, Judge.

This is a case arising out of a petition for relief under the Post Conviction Procedure Act, Maryland Code (1957, 1996 Repl.Vol., 2000 Supp.) Article 27, § 645A, alleging ineffective assistance of counsel under the Sixth Amendment to the United States Constitution. The question we must decide is whether Petitioner's federal constitutional right to effective assistance of counsel under the Sixth Amendment was violated because his trial counsel was unaware that, based on Article IV, § 8 of the Maryland Constitution, Petitioner, who was charged with first degree murder and subject to the death penalty, had an automatic right to remove the case to another county. The Circuit Court for Allegany County granted Petitioner a new trial, and the Court of Special Appeals reversed the Circuit Court. This Court granted the Petition for Writ of Certiorari, and we shall affirm the Court of Special Appeals.

I.

Joseph Marlo Redman, Petitioner, was indicted in 1994 by the Grand Jury for Allegany County for first degree murder, robbery, attempted first degree rape and other related offenses. The State filed a notice of intention to seek the death penalty. The jury convicted Petitioner of first degree murder and attempted first degree rape. Petitioner waived his right to be sentenced by the jury and elected to be sentenced by the court. See Maryland Code (1957, 1996 Repl.Vol., 2000 Supp.) Art. 27, § 413(b)(3); Ware v. State, 360 Md. 650, 663, 759 A.2d 764, 770 (2000). The court sentenced Petitioner to life without parole on the murder conviction and to ten years consecutive on the attempted rape conviction. In an unreported opinion, the Court of Special Appeals affirmed the judgments of the Circuit Court.

On April 11, 1997, Redman filed in the Circuit Court a Petition for Post Conviction Relief, contending, inter alia, that his trial counsel rendered ineffective assistance by failing to seek a change of venue. Petitioner argued that because his trial counsel was unaware of the Maryland constitutional right affording automatic removal in capital cases, his performance was deficient under the Sixth Amendment.

At the post-conviction hearing, Petitioner's trial counsel admitted that he was unaware that a capital defendant has the right of automatic removal of the case to another county. He considered filing a motion for change of venue, but concluded that it was not in Petitioner's interest to do so for several reasons. First, he felt that seeking removal would have been a double edged sword because a court hearing on the motion would likely have generated publicity anew.¹ Second, because a defendant cannot select the new county, removal could put a defendant in a worse position because the case could be removed to a less favorable county.² He also weighed the impact of removal in light of the racial aspect of the case and any potential local biases and prejudices.³

Defense counsel then addressed his preparation for voir dire and the procedures he followed during the jury selection process. He stated that he consulted with a colleague who had tried a death penalty case and who had provided him with sample voir dire questions. Counsel testified that, at the conclusion of the voir dire, he was satisfied with the impartiality of the jury.

Petitioner testified at the hearing that he wanted his case removed from Allegany County and that he had expressed his desire to his attorney.⁴ He did not know, and his lawyer did not inform him, that he had an automatic removal right. He stated that, had he known of the right, he would have "demanded" to exercise it.

The trial court granted post-conviction relief and ordered a new trial. The court held: "While it is not a due process violation if [the] accused is not advised of the right, counsel's failure to advise Petitioner of the right casts significant doubt upon the fundamental reliability of the proceeding in terms of an ineffective assistance of counsel analysis" (internal citation omitted).

The State's Application for Leave to Appeal was granted by the Court of Special Appeals, and that court reversed the post-conviction court. We issued a Writ of Certiorari on Petitioner's motion and affirm the intermediate appellate court.

Petitioner argues that he is entitled to a new trial with the automatic right of removal because his trial counsel did not file a suggestion of removal at his 1994 trial. He maintains that counsel's lack of knowledge of Article IV, § 8(b) of the Maryland Constitution constituted ineffective assistance of counsel under the Sixth Amendment. Relying primarily on Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), he argues that prejudice should be presumed because the right of removal is a fundamental right or qualifies as a structural error not susceptible to establishing prejudice.⁵ He further argues that assuming, arguendo, that he must prove prejudice, the denial of the right to make his defense before a different jury constitutes prejudice.

The State's argument is threefold. First, the State argues that counsel's performance was not deficient because whether he knew that removal was a matter of right in a capital case matters not; the decision to seek removal remains a matter of trial tactics, and counsel evaluated properly the considerations in filing a suggestion of removal. In short, the State maintains that trial counsel's advice to Petitioner not to seek removal should be viewed as a reasonable professional judgment.⁶ Second, the State argues lack of prejudice. Third, citing the Maryland Constitution, Art. IV, § 8(c), the State argues that Petitioner is not entitled to a new trial because, at any new trial, he would not be entitled to automatic removal as a matter of law.

II. The Maryland Constitutional Right, Art. IV, § 8

Article IV, § 8(b) of the Maryland Constitution provides as follows:

In all cases of presentments or indictments for offenses that are punishable by death, on suggestion in writing under oath of either of the parties to the proceedings that the party cannot have a fair and impartial trial in the court in which the proceedings may be pending, the court shall order and direct the record of proceedings in the presentment or indictment to be transmitted to some other court having jurisdiction in such case for trial.⁷

See Maryland Rule 4-254(b)(1) (implementing the constitutional provision).

The right of removal is absolute where the criminal offense is punishable by death. See MD. CONST. art. IV, § 8(b); Maryland Rule 4-254(b)(1); Johnson v. State, 271 Md. 189, 191, 315 A.2d 524, 526 (1974). Writing for the Court in Johnson, Judge Eldridge stated:

Article IV, § 8, of the Maryland Constitution gives a criminal defendant an absolute right of removal to another court if he is charged with an offense which is or may be "punishable by death." He need do no more than file in writing, under oath, a suggestion that he "cannot have a fair and impartial trial in the court" in which the case is pending. In criminal cases not punishable by death, the constitutional provision requires the defendant to go further and "make it satisfactorily appear to the Court that such suggestion is true, or that there is reasonable ground for the same."

Johnson, 271 Md. at 191, 315 A.2d at 526.

In Heslop v. State, 202 Md. 123, 126, 95 A.2d 880, 881 (1953), Judge Delaplaine traced the history of the right of removal and noted that, although the history is checkered, the right has nonetheless been considered of such significance that it has been incorporated in some form in the organic law of this State for more than a century and a half. In January 1805, the Legislature passed an Act proposing an Amendment to the Constitution of 1776 that, inter alia, gave courts discretion to remove criminal cases where any party suggested in writing that a fair and impartial trial could not be had in the court in which the case was pending. See id. at 126-27, 95 A.2d at 881. The Act was later confirmed, and a discretionary right of removal in all criminal cases became part of the Maryland Constitution. The Constitutional Convention of 1851 revised this provision by eliminating the discretionary aspect and gave the right of removal to the defendant in every criminal case. Reports of gross abuse⁸ of the unlimited removal right led the Constitutional Convention of 1864 to return the power of removal to the court's discretion, and the Constitution was amended to so provide. See MD. CONST. art. IV, § 9 (amended 1864); Heslop, 202 Md. at 127-28,95 A.2d at 882. The rule was again changed by the Constitutional Convention of 1867, removing once more the court's discretion and making the right automatic. See MD. CONST. art. IV, § 8 (amended 1867); Heslop, 202 Md. at 127-28,95 A.2d at 882. In 1874, the Legislature, again hearing reports of abuse of the unlimited removal right, proposed an Amendment to the 1867 Constitution to provide automatic removal only in those cases where the crime was punishable by death. See Heslop, 202 Md. at 129,

95 A.2d at 882 (citing 1874 Maryland Laws, ch. 364). This Amendment was ratified by the Maryland voters in 1875 and reflects the current constitutional provision authorizing unlimited removal in criminal cases where the penalty may be death.

A review of the history of the removal provision demonstrates "a shifting concern between having a broad right of removal and having a very limited...