State v. Armstead, No. 1148

• Court: Court of Special Appeals of Maryland
• Writing for the Court: Opinion by Harrell, J.
• Parties: STATE OF MARYLAND v. KEVIN ARMSTEAD
• Docket Number: No. 1148
• Decision Date: 01 February 2018

STATE OF MARYLAND
v.
KEVIN ARMSTEAD

No. 1148

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2016
Argued: November 13, 2017
February 1, 2018

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), and Atkins 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

Page 2

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.

Page 3

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.

Page 4

"Ninety-nine bottles of beer on the wall, Ninety-nine bottles of beer.
You swab one down and run it through CODIS, Ninety-eight bottles of beer on the wall."

Lines spoken by the character Greg Sanders on "CSI" Season 3, Episode 19 "A Night at the Movies" (CBS-TV. Episode aired 10 April 2003)

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"¹ voir 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,

Page 5

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.

Statement of Facts

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's

Page 6

direct appeal, Armstead v. State, 195 Md. App. 599, 605-9 7 A.3d 169, 172-5 (2010), cert. denied, 418 Md. 191, 13 A.3d 798 (2011):

On [20 March 2007], Ricardo Paige was found lying dead on the living room floor of his residence at 502 East 43rd Street in Baltimore City, Maryland, having suffered multiple gun shot wounds. He was discovered by his daughter, Deneen Woods, and his grandson, Ricardo McDonald.
Woods testified at trial that she had seen [Armstead], also known as "Muggs," on the block on prior occasions with [Jamal] Fulton, who she knew as "Nube," and with Trendon and Tremaine Washington, twin brothers, both of whom she knew as "Twin." Fulton lived in the house next door, 500 East 43rd Street. Drugs were a "big problem" with Fulton. On the Friday before Woods's father was murdered, Fulton came to 502 East 43rd Street and argued with Paige. Fulton told Woods that her father was "making his spot hot." Woods responded by telling Fulton that she did not want any drugs to be around her father, and Fulton replied that "he would not say nothing else to [her] dad."
At some point after Paige's death, Woods spoke to a person in the neighborhood she knew as "Lurch." Lurch provided Woods with some information, and Woods conveyed that information to Detective James Lloyd.
Leroy Simon testified that he is known as "Lurch" and that he knew Paige through Woods. In late March 2007, intending to exchange drugs for sex, he was with a woman behind the victim's residence. At that time, he saw [Armstead], Fulton, known to him as "Nuke," and "Twin" and another unidentified individual near Paige's house.
He observed [Armstead] go into Paige's house first, and then he heard some "tussling." A few minutes later, he saw "Twin" enter the house. Fulton went inside the residence as well. The unidentified person remained outside the residence where he was giving orders.
After [Armstead], Fulton, and "Twin" were inside, Simon heard gunshots. He then heard sounds as if someone was sweeping up some glass and then saw the trio emerge from the residence.
Simon knew both Tremaine and Trendon Washington, and was aware that one of them was incarcerated at the time. He identified a photograph of Trendon Washington as the person he was referring to as "Twin" in his testimony.
After Simon testified that he spoke to Detective Lloyd on three occasions, the State sought to refresh his recollection with a statement, but Simon testified that he could not read or write. Because there was some confusion about whether Simon ever told police that he saw Fulton enter the

Page 7

residence, the jury was excused, and the tape of Simon's third interview was played to refresh Simon's recollection.
After the jury returned, Simon testified that Fulton was standing outside of the house and actually never went inside. Simon admitted he had made a mistake earlier during his testimony when he said Fulton had gone inside.
Simon continued his testimony as follows: While [Armstead], "Twin" (Trendon Washington), and an unidentified third person were inside the residence, Simon heard tussling. After he heard these sounds, Fulton, "who remained outside, hollered, 'handle your business.'" Simon then heard two to three gunshots. After the shooting, Simon saw all four individuals run from the residence.
Simon identified a photo of [Armstead] as a person who was present at the crime scene and had entered the residence. He also identified both Tremaine and Trendon Washington, distinguishing between them and identifying Trendon Washington as the twin present at the scene. Simon

...