State v. Armstead
Decision Date | 01 February 2018 |
Docket Number | No. 1148,1148 |
Parties | STATE OF MARYLAND v. KEVIN ARMSTEAD |
Court | Court of Special Appeals of Maryland |
HEADNOTES
POST CONVICTION - INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL - FAILING TO OBJECT TO CSI VOIR DIRE QUESTION
We decline Armstead's invitation to apply retrospectively Allen v. State, 204 Md. App. 701, 42 A.3d 708(2012) to our analysis in this case of Armstead's trial counsel's 2009 performance.We held in Allen that Stabb v. State, 423 Md. 454, 31 A.3d 922(2011), andAtkins v. State, 421 Md. 434, 26 A.3d 979(2011), applied to all cases then pending on direct appeal in which the issue of a CSI effect jury instruction was preserved.Here, a post-conviction court granted Armstead's petition for a new trial.Armstead's trial counsel failed to object to the CSI effect voir dire question at issue, failing ultimately to preserve it for our review.Armstead's trial counsel was not ineffective for failing to object to the trial judge's use of a CSI voir dire question on 25 March 2009, however.Trial counsel may be imputed reasonably to know at that time only of Evans v. State, 174 Md. App. 549, 922 A.2d 620(2007), discussing a defense counsel's objection to a CSI effect jury instruction, which instruction was found to be proper.It is not reasonable to expect trial counsel to foresee the change in the law that took place after Armstead's trial when the Court of Appeals decided Charles & Drake v. State, 414 Md. 726, 733, 997 A.2d 154, 158(2010), in which the impermissible nature of this particular CSI effect voir dire question was explicated.Armstead failed to meet his burden under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052(1984), presenting no evidence establishing that the prevailing professional norm at the time of his trial was to object to CSI effect messages to the venire.
POST CONVICTION - INEFFECTIVE ASSISTANCE OF COUNSEL - FAILING TO OBJECT TO CSI VOIR DIRE QUESTION - PREJUDICE - HARMLESS ERROR
Even if it were assumed Armstead's trial counsel's omission constituted constitutionally ineffective representation, the claimed error was harmless, beyond a reasonable doubt, under the circumstances of this record, thus leaving unsatisfied Strickland's prejudice requirement.Neither the trial court nor the parties' counsels repeated the anti-CSI effect message during the trial.The trial judge administered jury instructions at the close of the evidence, reasserting the State's burden of proof.Counsel were allowed amplitude in arguing their positions as to the adequacy or inadequacy of the evidence (scientific or otherwise) linking Armstead to the crimes.An eyewitness placed Armstead at the murder victim's home at the time of the murder.In addition, Armstead made a voluntary incriminating statement to Detective James Lloyd during Armstead's post-arrest interrogation.Thus, the absence of DNA evidence in the State's case linking Armstead to the murder of the victim was not of critical importance to the State's case proving, beyond a reasonable doubt, Armstead's participation in the crime.Armstead's claims regarding the assumedly erroneous CSI effect voir dire question did not cause impermissibly the guilty verdict.
Circuit Court for Baltimore City
Case No. 108113001-02
REPORTED
Kehoe, Nazarian, Harrell, Glenn T., Jr. (Senior Judge, Specially Assigned), JJ.
Opinion by Harrell, J.
At the core of this post-conviction case is the rectitude of the failure of trial counsel for Appellee, Kevin Armstead, to object to a so-called "anti-CSI effect"1voir dire question propounded on 25 March 2009 to the venire by a trial judge of the Circuit Court for Baltimore City.Armstead contends that that failure amounts to ineffective assistance of trial counsel because he would have had a reasonable probability of success on direct appeal had a challenge to the propriety of the voir dire question been preserved.The circuit court granted Armstead a new trial in 2016 in this post-conviction proceeding, which Armstead initiated in 2014.
Appellant, the State of Maryland, complains that the award of a new trial is inappropriate because, on 25 March 2009, Maryland common law (such as it was) approved of such a CSI question.Mistakenly, according to the State, the 2016 post-conviction court relied on contrary, subsequently-decided case law to justify ordering a retrial.The State maintains that Armstead's trial counsel was not obligated in 2009 to "see into the future" and anticipate the outcomes in the later-decided cases.Moreover,Armstead "did not call his trial defense counsel, or any other attorney, as a witness [in the post-conviction phase] to testify concerning the propriety of trial counsel's deliberate [trial strategy] decision not to object to the voir dire question."Thus, "there is no basis in which the post-conviction court could conclude that Armstead's [t]rial counsel was ineffective as alleged."Armstead failed, therefore, to satisfy his burden under the factors in Strickland v. Washington2 to prove ineffective assistance of counsel.The State argued also that Armstead failed to demonstrate satisfactorily how he was prejudiced by the lack of an objection, the second factor in the Strickland analysis.
In this appeal, Appellant poses one question:
I.Did the post-conviction court err when it determined, based on case law that issued after Armstead's trial, that Armstead's trial counsel was ineffective for failing to object to the circuit court's issuance of a CSI voir dire question?
We hold that the post-conviction court erred when it granted Armstead's petition and ordered a new trial.Armstead's trial counsel was not ineffective for failing to object to the CSI voir dire question.Even if we assumed his trial counsel's omission constituted ineffective representation, the claimed error was harmless, beyond a reasonable doubt, on the circumstances of this record.
We, like the post-conviction court, adopt in relevant part the summary of the evidence presented at Armstead's 2009 trial, as stated in our opinion regarding Armstead'sdirect appeal, Armstead v. State, 195 Md. App. 599, 605-97 A.3d 169, 172-5(2010), cert. denied, 418 Md. 191, 13 A.3d 798(2011):
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