State v. Colvin, No. 88

CourtCourt of Appeals of Maryland
Writing for the CourtArgued before MURPHY; RODOWSKY; BLACKWELL, J., dissents, in which ADKINS; BLACKWELL; ADKINS
Citation314 Md. 1,548 A.2d 506
PartiesSTATE of Maryland v. Eugene S. COLVIN a/k/a Eugene Sherman Colvin-El. ,
Decision Date01 September 1986
Docket NumberNo. 88

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314 Md. 1
548 A.2d 506
STATE of Maryland
v.
Eugene S. COLVIN a/k/a Eugene Sherman Colvin-El.
No. 88, Sept. Term, 1986.
Court of Appeals of Maryland.
Oct. 14, 1988.

[548 A.2d 507]

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Richard B. Rosenblatt, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for appellant.

John H. Morris, Jr. (Bert Black and Venable, Baetjer & Howard, on the brief), Baltimore, for appellee.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL, JJ.

RODOWSKY, Judge.

In August 1981 Eugene Sherman Colvin, a/k/a Eugene Sherman Colvin-El (Colvin-El) was found guilty of first degree murder, robbery with a deadly weapon and daytime breaking and entering by an Anne Arundel County jury. That same jury sentenced Colvin-El to death. We affirmed on direct review. Colvin v. State, 299 Md. 88, 472 A.2d 953,

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cert. denied, 469 U.S. 873, 105 S.Ct. 226, 83 L.Ed.2d 155 (1984) (Colvin-El I ). On post conviction review the Circuit Court for Anne Arundel County denied any relief as to the guilty verdict. That court, however, vacated the death sentence[548 A.2d 508] and ordered a new capital sentencing hearing because at the original sentencing the State introduced adult criminal convictions of Colvin-El obtained under an unconstitutional procedure which had been utilized only in Baltimore City against persons between the ages of sixteen and eighteen. After leave had been granted, the State and Colvin-El presented cross appeals.

We shall affirm. There is no basis for relief from the verdict of guilty of first degree murder. We agree with the circuit court that the use made against Colvin-El of the prior convictions violates equal protection. A new sentencing hearing is required in any event because the procedure employed at Colvin-El's sentencing by a jury is indistinguishable from the procedure invalidated in Mills v. Maryland, --- U.S. ----, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988).

Colvin-El's principal contention in support of a complete new trial is the claimed ineffectiveness of his trial counsel, Robert W. Payne (Payne), a private attorney assigned by the Public Defender's Office. We reject this contention in part I. In part II we address and reject other issues which go to guilt or innocence. We explain in part III why Colvin-El's current death sentence is vacated, subject to the State's right to seek another death sentence.

I
A

The standards to be applied to claims of constitutionally deficient representation were announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Those standards were painstakingly analyzed by Judge Orth, writing for this Court in Harris v. State, 303 Md. 685, 695-701, 496 A.2d 1074, 1079-82 (1985). The Strickland standards, as reviewed in Harris, were distilled by Chief Judge Murphy for this Court in State v. Tichnell,

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306 Md. 428, 441-42, 509 A.2d 1179, 1185-86, cert. denied, 479 U.S. 995, 107 S.Ct. 598, 93 L.Ed.2d 598 (1986), saying:

A two-part test was articulated in Strickland, i.e., that to establish a claim of ineffective assistance of counsel the defendant must show both that (1) counsel's performance was deficient and (2) that the deficient performance prejudiced the defense. [Citations omitted.]

The prejudice component of Strickland "requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." [466 U.S.] at 687, 104 S.Ct. at 2064. Accordingly, as we said in Harris, supra, 303 Md. at 700, 496 A.2d 1074, citing Strickland, 466 U.S. at 693, 104 S.Ct. at 2068, it is not enough for the defendant merely "to show that the errors had some conceivable effect on the outcome of the proceeding, or that the errors impaired the presentation of the defense." (Emphasis in original.) The burden is on the defendant to establish "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Furthermore, a reasonable probability is " 'a probability sufficient to undermine confidence in the outcome.' " Id.

The Supreme Court has illustrated the first component of Strickland in Burger v. Kemp, --- U.S. ----, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987), and the second component in Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). Burger was a federal habeas corpus review of a Georgia death sentence. At the time of the murder the defendant was seventeen years old. His effective I.Q. was 82 and he had no criminal record known to the prosecutors. Defense counsel did not present at the sentencing hearing any proof designed to establish mitigating circumstances. Defense counsel's principal reason was a concern, supported by psychological testing, that the defendant would have shown no remorse and might have bragged about the crime. A majority of the Court held "that counsel's decision not to mount an all-out investigation

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into [the defendant's] background in search of mitigating circumstances was supported by reasonable professional[548 A.2d 509] judgment." --- U.S. at ----, 107 S.Ct. at 3126.

Kimmelman discussed the prejudice element where the principal allegation of ineffectiveness was defense counsel's failure to move, within the time permitted under New Jersey's procedure, to suppress illegally seized evidence, specifically, a sheet from a bed on which the victim had allegedly been raped. The Court, through Justice Brennan, held that, in addition to objectively deficient performance, "the defendant must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice." 477 U.S. at 375, 106 S.Ct. at 2583. Because the lower courts in Kimmelman had not utilized the Strickland approach to evaluating prejudice, the Court remanded for that determination.

With these constitutional principles in mind we turn to Colvin-El's claim of denial of the right to counsel through ineffective representation. Understanding that claim requires a review of the facts.

B

On September 9, 1980, between approximately 1:00 and 2:30 in the afternoon, Lena Buchman, age 82, was murdered in her daughter's home at 6806 Cherokee Drive in the Pikesville section of Baltimore County. Mrs. Buchman, a resident of Florida, had flown to Baltimore that morning to visit her daughter, Mrs. Majorie Sorrell. Both Mr. and Mrs. Sorrell were out of the house, at work, when the murder occurred. Mrs. Buchman was last seen alive by her granddaughter, Ms. Susan Sorrell, who left her alone in the house at approximately 1:00 p.m.

Cherokee Drive is a quiet street in a predominately white neighborhood of individual homes. The only black family is the Hayes household at No. 6804, immediately south of the

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Sorrells on the west side of Cherokee Drive. The Sorrells' property is improved by a split level residence. Its main entrance, on the street side at ground level, opens onto an entrance hall. The living room is to the left of one entering, the kitchen is in the rear of the ground level, straight on from the front door, and a dining area is on the rear, south side. Between the entrance hall and kitchen are two sets of stairs, one to the upper, bedroom area of the house and the other to the lower, basement area. There is a rear door in the kitchen at roughly ground level. On the exterior of the rear of the house, below ground level, is a stairwell to a door to the basement. That door is hinged to open into the basement.

At approximately 2:30 p.m. on the day of the murder, Mrs. Nanette Flax returned to her home at 6808 Cherokee Drive and noticed the Sorrells' dog running loose and unsupervised, a most unusual occurrence. She retrieved the dog, hooked it by its leash to a wire run and went to the main entrance of the Sorrells' house to relate those events to whomever was home. Getting no response to her knock, Mrs. Flax opened the unlocked screen door and stepped through the doorway of the solid, wooden front door, which was standing open. She glanced down and saw a body lying in a pool of blood at the foot of the stairs leading to the bedroom area.

Mrs. Buchman had been stabbed or slashed with a knife twenty-eight times. Some of the cuts were defensive cuts on the hands. Blood was splattered up the stairway but not as far as the upper end of the stairs. The knife, one from the Sorrells' kitchen, was found at the foot of the basement stairs. The master bedroom had been ransacked and jewelry taken.

Glass in the exterior basement door had been broken and the police found pieces of the glass lying on the steps of the exterior stairwell. That door is wood from its bottom to a level slightly above the knob. Above the wood are wide, rectangular glass panes, one above another. The pane immediately above the door knob had been broken. The

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center of the impact to that glass was on the knob side of the door which is the left side to one facing the door while standing in the basement.

Detective Darrell Sturgeon, an experienced police officer and crime lab technician,[548 A.2d 510] dusted the crime scene for fingerprints. He obtained twelve latent fingerprints from the pieces of glass. At that time he did not know whether the prints were identifiable and, if identifiable, whose they were.

The interior side of the basement door was covered for the width of the window panes and from the top of the door to a level approximately one foot from the floor by a curtain made of a floral print material. In addition to a lock in the door knob there were two chain locks on the door, one at knob level and the other roughly two feet higher. The Sorrells rarely used this basement door and kept an ironing board in a folded position leaning against the knob side of the door. On...

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37 practice notes
  • Hunt v. State, No. 110
    • United States
    • Court of Appeals of Maryland
    • December 28, 1990
    ...Repl.Vol.), Art. 27, § 413(b)(iii) and (iv). This Court has acknowledged the validity of resentencing proceedings. 8 See State v. Colvin, 314 Md. 1, 18-19, 548 A.2d 506, 514-15 (1988); Harris V, 312 Md. at 240, 539 A.2d at 644; Tichnell v. State, 290 Md. 43, 60, 427 A.2d 991, 999 (1981) (Ti......
  • Grandison v. State, No. 64
    • United States
    • Court of Appeals of Maryland
    • September 1, 1994
    ...challenges to resentencing proceedings when a prior death sentence has been vacated pursuant to Mills, see State v. Colvin, 314 Md. 1, 17-18 n. 5, 24-25, 548 A.2d 506, 514 n. 5, 517-18 (1988), as well as a constitutional challenge to multiple resentencings where one sentencing occurred befo......
  • Unger v. State, No. 111
    • United States
    • Court of Special Appeals of Maryland
    • May 24, 2012
    ...at 336-338 (dissenting opinion). See also, e.g., Franklin v. State, 319 Md. 116, 122-123, 571 A.2d 1208, 1210-1211 (1990); State v. Colvin, 314 Md. 1, 25, 548 A.2d 506, 517-518 (1988); State v. Evans, 278 Md. 197, 211, 362 A.2d 629, 637 (1976).4 In the case at bar, in Part V of this opinion......
  • Facon v. State, No. 1789
    • United States
    • Court of Special Appeals of Maryland
    • February 5, 2002
    ...robbery that her husband was also present and offered resistance." In reaching its decision, the Borchardt Court relied on State v. Colvin, 314 Md. 1, 20, 548 A.2d 506 (1988). In that case, the Court expressly rejected the defendant's contentions that a robbery requires the taking of proper......
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37 cases
  • Hunt v. State, No. 110
    • United States
    • Court of Appeals of Maryland
    • December 28, 1990
    ...Repl.Vol.), Art. 27, § 413(b)(iii) and (iv). This Court has acknowledged the validity of resentencing proceedings. 8 See State v. Colvin, 314 Md. 1, 18-19, 548 A.2d 506, 514-15 (1988); Harris V, 312 Md. at 240, 539 A.2d at 644; Tichnell v. State, 290 Md. 43, 60, 427 A.2d 991, 999 (1981) (Ti......
  • Grandison v. State, No. 64
    • United States
    • Court of Appeals of Maryland
    • September 1, 1994
    ...challenges to resentencing proceedings when a prior death sentence has been vacated pursuant to Mills, see State v. Colvin, 314 Md. 1, 17-18 n. 5, 24-25, 548 A.2d 506, 514 n. 5, 517-18 (1988), as well as a constitutional challenge to multiple resentencings where one sentencing occurred befo......
  • Collins v. State, No. 33
    • United States
    • Court of Appeals of Maryland
    • September 1, 1988
    ...comparable to the admission of a VIS. The comments did not describe the effects of the murder on the Breeden family. See State v. Colvin, 314 Md. 1, 22, 548 A.2d 506, 516 Page 294 IX. Admissibility of Defendant's Juvenile Record and Institutional History Collins claims the trial judge erred......
  • Borchardt v. State, No. 55
    • United States
    • Court of Appeals of Maryland
    • December 13, 2001
    ...wallet, money, and cards belonged to Joseph, and not Bernice, but that is not dispositive of the issue. We made clear in State v. Colvin, 314 Md. 1, 548 A.2d 506 (1988) that a robbery conviction may be sustained even if the victim of the force is not the owner of the property taken and is n......
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