State v. Christian, No. 0392

CourtCourt of Special Appeals of Maryland
Writing for the CourtOpinion by Meredith, J.
PartiesSTATE OF MARYLAND v. MARK EDMUND CHRISTIAN, II
Docket NumberNo. 0392
Decision Date26 October 2018

STATE OF MARYLAND
v.
MARK EDMUND CHRISTIAN, II

No. 0392

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2017
October 26, 2018


Circuit Court for Harford County
Case No. 12-K-11-000887

UNREPORTED

Meredith, Kehoe, Arthur, JJ.

Opinion by Meredith, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

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The State of Maryland, appellant, appeals the postconviction order of the Circuit Court for Harford County that granted Mark Edmund Christian, II, appellee, a new trial.

In March 2012, a jury sitting in the Circuit Court for Harford County found Christian guilty of first degree murder, attempted armed robbery, conspiracy to commit armed robbery, and use of a handgun in the commission of a felony or crime of violence. He was sentenced to life plus 30 years' incarceration. On direct appeal to this Court, we affirmed his convictions, and the Court of Appeals denied certiorari review. Mark Christian, II, v. State of Maryland, No. 636, September Term, 2012 (filed Sept. 23, 2013) (unreported), cert. denied, Christian v. State, 434 Md. 312 (2013) (Table).

On January 14, 2016, Christian filed a petition in the Circuit Court for Harford County seeking postconviction relief. The court held a hearing, and on March 24, 2017, the court granted Christian's petition in part and ordered a new trial. After timely filing a Motion for Leave to Appeal, the State then filed a Motion to Reconsider the postconviction court's order which was denied by the circuit court. We granted the State's Motion for Leave to Appeal on September 27, 2017, and the case was transferred to the regular appeal docket.

QUESTIONS PRESENTED

The State presents the following questions for our review:

1. Did the post-conviction court abuse its discretion when it granted Christian post-conviction relief?

2. Did the post-conviction court abuse its discretion when it denied the State's motion for reconsideration and request for hearing?

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Because we do not find that the postconviction court abused its discretion, we shall affirm.

FACTS AND PROCEDURAL BACKGROUND

After Christian's trial, he filed a direct appeal and presented the following four questions for review:

I. Was the evidence legally insufficient to sustain the convictions?

II. Did the trial court commit plain error in its instructions to the jury?

III. Did the trial court commit plain error in propounding certain questions in voir dire examination of prospective jurors?

IV. Does [a]ppellant stand acquitted of use of a handgun in the commission of a felony or crime of violence?

We affirmed the trial court's judgments and held the following:

I. a rational trier of fact had sufficient evidence, if believed, to draw the inferences necessary to find Christian guilty of the crimes charged;

II. the trial judge was, at best, mistaken in one clause of his jury instructions when he said that the jurors were the judges of the law and the facts, but the argument was not preserved, and we declined to conduct plain error review;

III. the CSI voir dire question was erroneous, but was harmless due to the trial court's curative questions;

IV. Christian's conviction for using a handgun in the commission of a felony was not subject to the double jeopardy prohibition.

On December 30, 2015, Christian filed a petition for postconviction relief and claimed that his convictions were in violation of his Sixth and Fourteenth Amendment rights for two reasons. First, he alleged that his counsel had "an actual conflict of

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interest" because Christian was represented by the Office of the Public Defender at the same time Christian's co-defendant, Brown, was also represented by the Office of the Public Defender on violation of probation proceedings, which, Christian argued, were related to the victim's murder. The postconviction court denied this claim.

Second, Christian claimed ineffective assistance of counsel because of his attorney's failure to do the following:

1. discover, investigate, and introduce several sources of exculpatory evidence;

2. request a "missing evidence" instruction;

3. object to an "anti-CSI" voir dire instruction, resulting in a violation of Mr. Christian's Sixth Amendment right to an impartial jury; and

4. object to a clearly unconstitutional Unger instruction that improperly told the jurors that they were the "judges of both the law and the facts."1

On March 24, 2017, the postconviction court granted Christian a new trial based on three of the asserted claims of ineffective assistance of counsel, holding:

The relief requested shall be granted as to that Petitioner's claims of ineffective assistance of counsel regarding the "anti-CSI" voir dire question, the Unger jury instruction, the missing evidence instruction, and the cumulative ineffectiveness of counsel.

On April 21, 2017, the State filed in this Court a Motion for Leave to Appeal. On June 5, 2017, the State filed in the circuit court a Motion to Reconsider Post-Conviction

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Relief, alleging that the official transcript's quotation of the jury instruction alleged to be in violation of Unger was inaccurate, and that the actual instruction the judge gave at trial did not include the offending language. The postconviction court denied the State's Motion to Reconsider, explaining that only a defendant may seek to reopen a postconviction proceeding, and that, in any event, under Maryland Code (1973, 2013 Repl. Vol.), Courts and Judicial Proceedings Article ("CJ"), § 12-308, the court was "divested of jurisdiction" over the matter because the State had filed an application for leave to appeal. The postconviction court observed that the State might be able to "seek leave to correct the record" on appeal.

We granted the State's application for leave to appeal on September 27, 2017, and transferred the case to our regular docket.

STANDARD OF REVIEW

"The review of a postconviction court's findings regarding ineffective assistance of counsel is a mixed question of law and fact." Newton v. State, 455 Md. 341, 351 (2017). In State v. Gross, 134 Md. App. 528, 558-59 (2000), aff'd, 371 Md. 334 (2002), we described appellate review of a postconviction court's rulings as follows:

In reviewing a hearing judge's determination on a claim of ineffective assistance of counsel, we will, of course, extend great deference to the hearing judge's findings of disputed, first-level, historic facts, but will nonetheless make our own independent decision with respect to the ultimate legal significance of those facts. Strickland v. Washington, 466 U.S. at 698, 104 S.Ct. 2052, was emphatic in this regard:

Ineffectiveness is not a question of "basic, primary, or historical fac[t]." Rather, . . . it is a mixed question of law and fact. . . . [B]oth the performance and prejudice

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components of the ineffectiveness inquiry are mixed questions of law and fact.

(Citations omitted; emphasis supplied).

Within a year after Strickland was decided, Judge Orth, writing for the Court of Appeals, in Harris v. State, 303 Md. 685, 698 (1985), set out the process to be followed by a court conducting appellate review:

[I]n making our independent appraisal, we accept the findings of the trial judge as to what are the underlying facts unless he is clearly in error. We then re-weigh the facts as accepted in order to determine the ultimate mixed question of law and fact, namely, was there a violation of a constitutional right as claimed. Walker v. State, 12 Md. App. 684, 691-95, 280 A.2d 260 (1971)[.]

See also State v. Thomas, 328 Md. 541, 559 (1992); State v. Purvey, 129 Md. App. 1, 10 (1999); Cirincione v. State, 119 Md. App. 471, 485 (1998).

In her dissent in Syed v. State, 236 Md. App. 183, 287-88 (2018) (Graeff, J., dissenting), Judge Graeff explained our application of the Strickland standards on appellate review as follows:

In Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court stated that the "benchmark" for judging a claim of ineffective assistance of counsel is "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." To prevail on a claim of ineffective assistance of counsel, a defendant must satisfy a two-prong test: "First, the defendant must show that counsel's performance was deficient." Id. at 687, 104 S. Ct. 2052. Second, the defendant must show that counsel's deficient performance prejudiced the defense, i.e., that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. 2052. The defendant must make both showings. Id. at 687, 104 S. Ct. 2052. If he or she fails to show either

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prong, "it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable." Id.

The Supreme Court has made clear that "'[s]urmounting Strickland's high bar is never an easy task.'" Harrington v. Richter, 562 U.S. 86, 105, 131 S. Ct. 770, 178 L.Ed.2d 624 (2011) (quoting Padilla v. Kentucky, 559 U.S. 356, 371, 130 S. Ct. 1473, 176 L.Ed.2d 284 (2010)). The Strickland test "must be applied with scrupulous care, lest 'intrusive post-trial inquiry' threaten the integrity of the very adversary process the right to counsel is meant to serve." Id. (quoting Strickland, 466 U.S. at 689-690, 104 S. Ct. 2052).

. . . To show that counsel's performance was deficient, the defendant must show that "counsel's representations fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688, 104 S. Ct. 2052. The performance prong "is satisfied only where, given the facts known at the time, counsel's 'choice was so patently unreasonable that no competent attorney would have
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