State v. Davis

• Decision Date: 28 January 2021
• Docket Number: No. 1898, Sept. Term, 2019,1898, Sept. Term, 2019
• Citation: 245 A.3d 133,249 Md.App. 217
• Parties: STATE of Maryland v. Arnold DAVIS
• Court: Court of Special Appeals of Maryland

249 Md.App. 217

245 A.3d 133

STATE of Maryland

v.Arnold DAVIS

No. 1898, Sept. Term, 2019

Court of Special Appeals of Maryland.

January 28, 2021

Submitted on the briefs by: Andrew H. Costinett (Brian E. Frosh, Attorney General on the brief), Baltimore, Maryland, for Appellant.

Submitted on the briefs by: Nancy S. Forster (Forster & LeCompte on the brief), Towson, Maryland, for Appellee.

Leahy, Gould, Charles E. Moylan Jr. (Senior Judge, Specially Assigned), JJ.

Gould, J.

In 2007, Arnold Davis, appellee, was convicted by a jury sitting in the Circuit Court for Wicomico County of several offenses related to an armed home invasion in Salisbury, Maryland.¹ In 2019, the circuit court granted Mr. Davis's motion for post-conviction relief, finding his counsel ineffective and awarding him a new trial. The State appeals from that decision, asking: "Did the [circuit] court err in finding [Mr. Davis's] trial counsel ineffective for not objecting to a compound voir dire question addressing potential jurors’ ‘strong emotional feelings’ regarding the crimes of attempted murder and kidnapping?" For the reasons below, we agree with the State that the circuit court erred and reverse.

FACTS AND PROCEDURAL BACKGROUND

During voir dire, the circuit court asked the venire panel the following question:

The charges, as you may have heard, involve an allegation of attempted murder. Does the nature – and also kidnapping. Do the nature of the charges themselves, just alone, stir up such strong emotional feelings in you that you cannot be a fair and impartial juror in this case?

Mr. Davis's counsel did not object to this question, and no prospective juror responded. Mr. Davis also did not challenge the propriety of the voir dire question in his direct appeal.

Ten years after his conviction and sentencing, Mr. Davis filed a motion for post-conviction relief, arguing that he was entitled to a new trial. Citing Dingle v. State , 361 Md. 1, 759 A.2d 819 (2000), he argued that his trial counsel's performance was deficient because his counsel did not object to the compound "feelings" voir dire question recited above. The State responded that Mr. Davis's trial counsel did not perform deficiently because the voir dire question was proper when Mr. Davis was tried, and therefore, the circuit court did not need to address prejudice.

A hearing on the motion was held on May 24, 2019. Mr. Davis's trial counsel was the sole witness. He testified that he was aware of the Court of Appeals’ decision in Dingle . As to why he did not object to the trial court's voir dire question, he responded: "[T]here are instances where I know a question is a Dingle question and I make an affirmative decision not to object. I don't recall in this case so I would be speculating [as to why I did not object]." He explained why he sometimes intentionally did not object, stating: "Depends on the jury, it depends on the charge, it depends on sort of how the trial is proceeding[,] ... [whether] I [ ] believe it is dispositive or significant[, or] I'm more interested in other questions." He testified, "I can't think of a reason why I wouldn't object to it in this case" and could not recall whether he had a strategy behind not objecting. He candidly testified on cross-examination that for him, not objecting to a voir dire question is sometimes a trial tactic and sometimes the result of inattention.

Following the trial attorney's testimony and the parties’ arguments, the circuit court took the matter under advisement. In a subsequent written opinion, the court agreed with Mr. Davis's argument that his trial counsel was constitutionally ineffective. The court concluded that (1) the question was improper under Dingle ; (2) the trial counsel's failure to object amounted to deficient performance; and (3) prejudice was presumed under Wright v. State , 411 Md. 503, 983 A.2d 519 (2009).

DISCUSSION

The State argues on appeal that the circuit court erred in concluding that Mr. Davis's trial counsel was constitutionally ineffective. The State argues that trial counsel's performance was not deficient for not objecting to the voir dire question at issue because, at the time of Mr. Davis's trial, Maryland law allowed compound voir dire questions about "the state of mind or attitude" of prospective jurors about the charged crimes. The State contends that it was not until the Court of Appeals decided Pearson v. State , 437 Md. 350, 86 A.3d 1232 (2014), that such questions were deemed improper. The State also argues that the circuit court erred in presuming prejudice because Mr. Davis was required to prove actual prejudice, which he did not. Mr. Davis responds that the circuit court did not err in finding his trial counsel ineffective for failing to object to an improper voir dire question, and the court correctly found the error created a presumption of prejudice.

I.STANDARD OF REVIEW

"[R]eview of a post[-]conviction court's findings regarding ineffective assistance of counsel is a mixed question of law and fact." Newton v. State , 455 Md. 341,351, 168 A.3d 1 (2017), cert. denied , ––– U.S. ––––, 138 S. Ct. 665, 199 L.Ed.2d 554 (2018) (citation omitted). An appellate court will not disturb the factual findings of a trial court, unless those findings are clearly erroneous. Arrington v. State , 411 Md. 524, 551, 983 A.2d 1071 (2009). We review a trial court's conclusions of law, including its conclusion as to whether the petitioner's counsel was ineffective, without deference, making an independent determination of the relevant law and its application to the facts. Ramirez v. State , 464 Md. 532, 560, 212 A.3d 363 (2019) (citation omitted), cert. denied , ––– U.S. ––––, 140 S. Ct. 1134, 206 L.Ed.2d 194 (2020).

II.ANALYSIS

The Sixth Amendment to the United States Constitution grants criminal defendants the right to effective assistance of counsel. See Strickland v. Washington , 466 U.S. 668, 684-85, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Strickland , the Supreme Court set out a two-prong test for reviewing ineffective assistance of counsel claims. Id. at 687, 104 S.Ct. 2052. The first prong is known as "the performance prong[,]" and the second prong is known as "the prejudice prong[.]" Newton , 455 Md. at 356, 168 A.3d 1 (citations omitted).

As to the first prong, the petitioner must show that trial counsel's performance was so deficient that "counsel was not functioning as the ‘counsel’ guaranteed ... by the Sixth Amendment." Strickland , 466 U.S. at 687, 104 S.Ct. 2052. Specifically, the petitioner "must show that counsel's representation fell below an objective standard of reasonableness ... under prevailing professional norms." Id. at 688, 104 S.Ct. 2052. The Supreme Court explained:

A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.

Id. at 689-90, 104 S.Ct. 2052 (cleaned up). "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690, 104 S.Ct. 2052.

As to the second prong, the petitioner must also show that counsel's deficient performance prejudiced petitioner's defense. Id. at 687, 104 S.Ct. 2052. This requires a showing of "either (1) a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different; or (2) that the result of the proceeding was fundamentally unfair or unreliable." Bailey v. State , 464 Md. 685, 703, 212 A.3d 912 (2019) (cleaned up). The Court of Appeals has explained: "[w]e have interpreted reasonable probability to mean there was a substantial or significant possibility that the verdict ... would have been affected." State v. Syed , 463 Md. 60, 86-87, 204 A.3d 139 (cleaned up), cert. denied , ––– U.S. ––––, 140 S. Ct. 562, 205 L.Ed.2d 356 (2019). In Strickland , the Supreme Court explained how to assess prejudice:

a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways. Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court making the prejudice inquiry must ask if the [petitioner] has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.

466 U.S. at 695-96, 104 S.Ct. 2052.

Applying the foregoing principles of law to the facts of this case, we begin with the observation that Mr. Davis's trial occurred seven years after the 2000 decision in Dingle and seven years before the 2014 decision in Pearson v. State . The law on compound jury selection questions evolved over this 14-year period. Pinpointing Mr. Davis's trial on this continuum is critical to the central issue before us: whether Mr. Davis's trial counsel's failure to...