Schmitt v. State

• Citation: 779 A.2d 1004,140 Md. App. 1
• Decision Date: 31 August 2001
• Docket Number: No. 0104,0104
• Parties: Steven Joseph SCHMITT, v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

779 A.2d 1004

140 Md. App. 1

Steven Joseph SCHMITT, v. STATE of Maryland.

No. 0104, Sept. Term, 2000.

Court of Special Appeals of Maryland.

August 31, 2001.

Mark Gitomer, Baltimore, for appellant.

Jason F. Trumpbour, Staff Attorney (J. Joseph Curran, Jr., Attorney General, Ann N. Bosse, Assistant Attorney General, Baltimore, and Sandra A. O'Connor, State's Attorney for Baltimore County, Towson, on the brief), for appellee.

Argued before MURPHY, C.J., and ROBERT L. KARWACKI and CHARLES E. MOYLAN, Jr. (retired, specially assigned), JJ. CHARLES E. MOYLAN, Jr., Judge, Retired, Specially Assigned.

This is an appeal from the partial denial of post-conviction relief. In an August 1994 trial before a Baltimore County jury, the appellant, Steven Joseph Schmitt, was convicted of first-degree murder, attempted armed robbery, and the use of a handgun during the commission of a crime of violence. He is serving a term of life imprisonment. This Court on direct appeal affirmed the convictions in an unreported opinion, see Schmitt v. State, No. 1414, Sept. Term, 1994, 105 Md.App. 805 (June 15, 1995) (Schmitt I), and the Court of Appeals denied certiorari. 340 Md. 303, 666 A.2d 1237 (1995).

On February 1, 2000, Judge J. Norris Byrnes granted the appellant partial post conviction relief and permitted him to file a belated appeal on two issues. Those issues were whether the trial court erred (1) in denying the appellant the right to introduce an eyewitness statement, contained in a police report and made by a person who was unavailable for trial, indicating that someone other than the appellant committed the crime; and (2) in allowing a police detective to testify regarding the absence of any police records of a shooting at an automatic teller machine on Pulaski Highway between September 18, 1990, and October 1991, other than the shooting for which the appellant was tried. This Court in an unpublished opinion answered both of those questions in the negative and affirmed the appellant's convictions. Schmitt v. State, No. 3003, Sept. Term, 1999 (Oct. 19, 2000) (Schmitt II).

In his petition for post-conviction relief the appellant raised twenty-two separate allegations of ineffective assistance of trial counsel. Other than granting the belated appeal on two issues, Judge Byrnes denied all other relief requested by the appellant. It is the denial of four of those "other contentions" that is currently before us on appeal.

Two contentions claim that although Judge Byrnes found instances of deficient performance by trial counsel, he erroneously failed to find trial prejudice:

1. That Judge Byrnes erroneously determined that although counsel was ineffective for failing to object to the State's faulty proffer of James Gatch's testimony, such a failure was not so prejudicial as to warrant a new trial;

2. That Judge Byrnes erroneously determined that although trial counsel was ineffective for failing to request an alibi instruction, such failure was not so prejudicial as to warrant a new trial.

Two other contentions claim that Judge Byrnes erroneously failed to find two instances of deficient trial performance in the first instance:

3. That Judge Byrnes erroneously determined that trial counsel was not ineffective for failing either to move for a mistrial or to ask for a missing witness instruction in light of the State's failure to call Jerry Scharf as a witness;

4. That Judge Byrnes erroneously determined that trial counsel was not ineffective for failing to try to impeach State's witness Germaine Churma with her prior conviction of thefts.

The fifth is the "grab bag" contention:

5. That Judge Byrnes erroneously determined that the cumulative effect of all errors at trial did not result in a denial of the appellant's right to the effective assistance of counsel.

THESTRICKLAND V. WASHINGTON STANDARDS

In our recent decision of State v. Gross, 134 Md.App. 528, 550, 760 A.2d 725 (2000), cert. granted, 362 Md. 623, 766 A.2d 147 (2001), we explained the applicable standard of review for claims of ineffective assistance of counsel:

The fountainhead is Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). After pointing out that the "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," 466 U.S. at 686, 104 S.Ct. 2052, the Supreme Court went on to establish the now classic two-pronged test for making such a determination. It referred to the two distinct elements that had to be analyzed as the "performance component" and the "prejudice component" of the "ineffectiveness inquiry." 466 U.S. at 698, 104 S.Ct. 2052.

See especially the excellent analysis and summary of the Strickland v. Washington test by Judge Orth in Harris v. State, 303 Md. 685, 695-701, 496 A.2d 1074 (1985). And see Judge Hollander's comprehensive analysis in State v. Jones, 138 Md.App. 178, 204-09, 771 A.2d 407 (2001).

We will look at the "performance component" and at the "prejudice component" as we examine each of the appellant's claims of ineffective assistance of counsel.

Failure of Defense Counsel to Object to State's Argument on Admissibility

The first issue raised on appeal concerns the characterization of the trial testimony of James Gatch made by the State and not objected to by defense counsel in the course of a legal argument at the bench. The murder had occurred at an ATM machine on Pulaski Highway, directly across the street from the Pilot Motel where the appellant was staying. Gatch had testified as a State's witness regarding a conversation he had had with the appellant in October of 1991, one year after the crime was committed. According to Gatch, during that conversation the appellant asked Gatch for a ride out of town due to the fact that the appellant was suspected of murder. The appellant, according to Gatch, admitted during that conversation that he had "shot someone at an automatic teller machine."

During the direct examination of Detective Brubaker, the lead detective on the case, the prosecutor asked him if he had checked police records for any reports of a robbery and shooting between September 19, 1990, and the fall of 1991. Defense counsel objected, and the State made the following proffer as to what Detective Brubaker would testify to:

If you remember, James Gatch testified that he talked to the Defendant over a year after this incident occurred and that the Defendant had told him that he robbed and shot a guy at the ATM on Pulaski Highway. I want to be able to show that the Defendant, if you believe that statement, the Defendant wasn't referencing some other shooting and robbery on Pulaski Highway that he might have committed or that someone else might have committed because th[ere] weren't any other shooting[s] and robberies in that area. Both Baltimore City and Baltimore County Police reports where checked. The incident that happened on September 18, 1990, was the only shooting and robbery that occurred in that area.

(Emphasis supplied).

A. There Was No Proffer of James Gatch's Testimony

Although the appellant raises a lot of flack about this issue, it is difficult to pinpoint precisely what his issue really is. As we attempt to analyze it, let it be very clear that we are going to take the issue as framed by the appellant's brief at face value. We are not going to frame an issue for him that he has not expressly framed for himself. As the appellant sets out this issue:

THE POST CONVICTION COURT ERRED IN NOT GRANTING THE APPELLANT A NEW TRIAL AFTER IT DETERMINED THAT TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE IN REGARD TO THE STATE'S ERRONEOUS PROFFER OF JAMES GATCH'S TESTIMONY

(Emphasis supplied).

For starters, there was no State's proffer, let alone a "State's erroneous proffer, of James Gatch's testimony." James Gatch actually testified and there was, therefore, no occasion for anyone to proffer at any time what his testimony was going to be. His testimony was already a fait accompli. During the testimony of Detective Brubaker the State asked him whether he had had "an occasion to check the Baltimore County and Baltimore City Police records for any incidents involving a robbery and shooting between September 19th of 1990 and the fall of 1991." There was a defense objection and counsel approached the bench. At that bench conference there was, to be sure, a proffer as to what Detective Brubaker's records check would show, but the proffer was of Detective Brubaker's likely future testimony and was not in any way a "proffer of James Gatch's testimony."

What the appellant was actually objecting to at the hearing on his post-conviction petition was not a proffer but, rather, the State's allegedly erroneous characterization, in the course of an argument at the bench, of the appellant's admission to Gatch as including the geographic detail "on Pulaski Highway."

B. AnArguendoConsideration

As we will subsequently explain more fully under our subheading "An Alternative Holding," we conclude that a true mischaracterization of the appellant's admission to James Gatch never took place. Gatch's reference to Pulaski Highway as a part of the appellant's admission actually came into evidence. Because the briefs and the oral argument of both the appellant and the State, however, are based exclusively on the assumption that such a mischaracterization indeed took place, and because the findings and rulings of the post-conviction court were based on the same assumption, we will, purely for the sake of argument, tentatively make the same assumption in order to determine whether the appellant would have suffered a denial of the effective assistance of counsel even under those assumed circumstances.

C. Ineffective Assistance: The Post Conviction Ruling

The appellant now contends that the failure of defense counsel to correct the State's...