State v. Borchardt

• Decision Date: 12 January 2007
• Docket Number: No. 58 September Term, 2005.,58 September Term, 2005.
• Citation: 914 A.2d 1126,396 Md. 586
• Parties: STATE of Maryland v. Lawrence Michael BORCHARDT.
• Court: Court of Special Appeals of Maryland

914 A.2d 1126

396 Md. 586

STATE of Maryland v. Lawrence Michael BORCHARDT.

No. 58 September Term, 2005.

Court of Appeals of Maryland.

January 12, 2007.

Annabelle L. Lisic, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of Maryland, on brief), Baltimore, MD, for appellant.

Brian J. Murphy, Baltimore, MD (Julie S. Dietrich and Jeffrey B. O'Toole of O'Toole, Rothwell, Nassau & Steinbach, Washington, DC), all on brief, for appellee.

Argued Before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.

RAKER, Judge.

Lawrence Michael Borchardt was tried by a jury in the Circuit Court for Anne Arundel County in May 2000, and convicted of two counts of first degree murder and felony murder, and robbery with a deadly weapon. The jury sentenced Borchardt to death. On direct appeal, this Court affirmed the judgment and sentence. Borchardt v. State, 367 Md. 91, 786 A.2d 631 (2001), cert. denied, 535 U.S. 1104, 122 S.Ct. 2309, 152 L.Ed.2d 1064 (2002) (Borchardt I). On March 24, 2003, Borchardt filed in the Circuit Court for Anne Arundel County a Petition for Post-conviction Relief pursuant to Md. Code (2001, 2005 Cum. Supp.), § 7-102 of the Criminal Procedure Article. The Circuit Court ordered a new sentencing proceeding on the ground that Borchardt was denied effective assistance of defense counsel. We granted the State's application for leave to appeal to consider whether Borchardt was denied effective assistance of counsel. We shall reverse.

I.

Borchardt robbed and murdered Joseph and Bernice Ohler in their home in Baltimore County on November 26, 1998, Thanksgiving Day. In Borchardt I, 367 Md. 91, 786 A.2d 631, we set forth the facts underlying Borchardt's conviction and sentence as follows:

"The evidence presented at trial was largely uncontradicted and was more than adequate to show that, in the course of a robbery, Borchardt murdered Mr. and Ms. Ohler. Borchardt and his girlfriend, Jeanne Cascio, lived about a mile from the Ohlers, along with Borchardt's son and the son's girlfriend, Tammy Ent. In order to help support his addiction to heroin, Borchardt, who was unemployed, would go door-to-door in the Golden Ring area of Baltimore County with Cascio, portraying her as cancer-afflicted and seeking donations to help pay for her treatment. On two previous occasions, Borchardt had been to the Ohler home, and Mr. Ohler had given him some money. On one occasion, Mr. Ohler drove Borchardt to a pharmacy, supposedly to pick up a prescription; in fact, Borchardt made a drug buy.

"Mr. Ohler's body was discovered in his backyard on Thanksgiving night, November 26, by a neighbor. When the police arrived, they found Ms. Ohler's body inside the house. Both had died of multiple stab wounds. Also found in the house was a promissory note for $60 from Borchardt to Mr. Ohler, a social security card and a State welfare card in the name of Cascio, the handle of a knife, and jewelry scattered on the floor. A block away, the police found Mr. Ohler's wallet, along with keys, business and credit cards, a bloody coat, and bloody leather gloves, the left one showing a slice on the ring finger. After visiting Borchardt's apartment and speaking with his son, the police obtained arrest warrants for Borchardt and Cascio and a search warrant for Borchardt's apartment. In executing the search warrant, the police seized several bloody rags.

"Borchardt and Cascio were arrested the next day, November 27. Borchardt had a cut on his left ring finger that corresponded to the slice found on the glove. He declined to talk with the police that day, claiming that he was suffering from drug withdrawal, but said that he would call them when he was ready to talk. He did so on December 9 — twelve days later — at which time, after being advised of his rights, he gave a seven-page written statement confessing to the murders. In that statement, Borchardt acknowledged that he needed money to buy drugs, that he went to the Ohler home and was admitted inside by Ms. Ohler, that he asked for $40 and was refused, that he then asked Ms. Ohler for some water and, while she was in the kitchen getting it, he took out his folding knife and stabbed Mr. Ohler five times, three times in the stomach and twice in the chest, that Ohler tried to escape but Borchardt knew he would not get far because of the way he was cut — his intestines were hanging out, that Borchardt then opened the desk in the hallway where he knew Mr. Ohler kept his wallet, that M s. Ohler ran in and said that she had called the police, whereupon he stabbed her three times, aiming for the heart, that Mr. Ohler managed to get out of the door, and that Borchardt then left with the wallet, took $11 from it, and discarded the cards and keys. Borchardt added that, though wearing his fur-lined leather gloves, he had cut his finger with the knife and that he discarded the gloves as well. In addition to the written statement, Borchardt told the detectives that `he has a taste of blood now and he wants to keep killing whether it be inside or outside jail.'

"Borchardt's son confirmed that his father was unemployed and got money by asking for donations, using a collection box with Cascio's picture. He stated that, on Thanksgiving Day, Borchardt and Cascio left their home together, to `hustle money for some more [drugs],' and that they returned about 20 minutes later. After Cascio bandaged Borchardt's finger, they left the apartment because, according to Borchardt, he `had to stab a couple of people.' The son identified the knife handle found in the Ohler home as part of one of Borchardt's knives. Several of the Ohlers' neighbors identified Borchardt as having come to their homes soliciting money on behalf of a woman needing treatment for cancer. Finally, DNA testing disclosed that Joseph Ohler could not be excluded as the source of blood found on Borchardt's jacket and shoes, although Borchardt, Cascio, and Ms. Ohler were excluded as the source. Borchardt, on the other hand, could not be excluded as the source of blood on the gloves found a block from the Ohler home, whereas the Ohlers and Cascio were excluded as sources. One fingerprint found at the scene of the murders that was suitable for comparison was identified as that of Borchardt."

Id. at 99-101, 786 A.2d at 635-36. On May 10, 2000, a jury in the Circuit Court for Anne Arundel County found Borchardt guilty of two counts each of premeditated murder, first degree felony murder, and robbery with a deadly weapon.

Borchardt elected to be sentenced by a jury. The jury determined that death was the appropriate sentence for both murders. The jury found unanimously that Borchardt was a principal in the first degree in both of the murders, that Borchardt committed more than one offense of murder in the first degree arising out of the same incident and that he committed the murders while committing or attempting to commit a carjacking, armed carjacking, robbery, arson in the first degree, rape in the first degree, or sexual offense in the first degree. As to mitigating circumstances, one or more jurors found the following mitigating circumstances to exist: "dysfunctional family (emotional, physical, and sexual abuse)," "life without parole is severe enough," and "health problems." The Circuit Court imposed a twenty-year sentence for the robbery of Joseph Ohler, consecutive to the death sentence, and twenty years for the robbery of Bernice Ohler, concurrent with the consecutive term. On direct appeal, this Court affirmed. Borchardt I, 367 Md. 91, 786 A.2d 631.

Borchardt filed this Petition for Postconviction Relief requesting a new trial and sentencing, alleging, inter alia, ineffective assistance of defense counsel during the guilt/innocence phase and the sentencing phase, ineffective assistance of appellate counsel, that Maryland's system for imposing capital punishment violates the Eighth and Fourteenth Amendments to the United States Constitution and the Maryland Declaration of Rights, that Maryland's capital sentencing statute, particularly Md. Code (2002, 2005 Cum. Supp.), § 2-303(i) of the Criminal Law Article¹ requiring that the court or jury find that any aggravating circumstances outweigh any mitigating circumstances by a preponderance of the evidence is invalidated by the Supreme Court's decisions in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that Maryland's method of execution, lethal injection, violates the Eighth Amendment and the Maryland Declaration of Rights, and that the delegation of power to the Commissioner of Corrections to carry out the death sentence authorized by § 2-303(l) violates Articles 8 and 16 of the Maryland Declaration of Rights.

The Circuit Court for Anne Arundel County held a hearing on Borchardt's Petition for Postconviction Relief and granted Borchardt a new sentencing proceeding.

A. Defense Counsel's Strategy

William Kanwisher, one of Borchardt's defense attorneys, testified at the postconviction proceeding that Borchardt's defense team tried the guilt/innocence phase with an eye toward building a case for mitigation at sentencing. Borchardt had two attorneys at trial — David Henninger and William Kanwisher. The record reflects that Henninger was lead counsel during the guilt/innocence phase, and Kanwisher was lead counsel at sentencing. Only Kanwisher testified at the postconviction proceeding.

The State had a strong case against Borchardt, which included physical evidence recovered at and near the crime scene implicating Borchardt and a detailed confession. Therefore, defense counsel explored the role of Jeanne Cascio in the Ohler murders. Because of statements that Cascio made to Patricia Garcia, a long-time friend of Cascio's, defense counsel pursued the strategy that Cascio was likely a principal in the first degree, at least as to the murder of Mrs. Ohler.

At sentencing, defense...