State v. Gross, 916

CourtCourt of Special Appeals of Maryland
Citation760 A.2d 725,134 Md. App. 528
Docket NumberNo. 916,916
PartiesSTATE of Maryland v. Alvin Winslow GROSS.
Decision Date12 October 2000

Celia Anderson Davis, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Frank Weathersbee, State's Atty. for Anne Arundel County, Annapolis, on the brief), for appellant.

Fred Warren Bennett (Michael E. Lawlor and Bennett & Nathans, LLP, on the brief), Greenbelt, for appellee.

Argued before MOYLAN, EYLER and STEPHEN P. JOHNSON (Specially Assigned), JJ. MOYLAN, Judge.

"In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence."

... The Sixth Amendment

"The right to counsel is the right to the effective assistance of counsel."
... McMann v. Richardson, 397 U.S. 759, 771 n.14, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)

At the end of a seven-day trial on December 8, 1994, the appellee, Alvin Winslow Gross, was convicted by an Anne Arundel County jury of 1) first-degree murder, 2) first-degree rape, 3) kidnapping, and 4) the use of a handgun in the commission of a crime of violence. He was sentenced to life without the possibility of parole for murder, 25 years concurrent for rape, 25 years concurrent for kidnapping, and 15 years concurrent for the handgun violation.

In an unreported opinion, this Court 1) held that the evidence was insufficient to sustain Gross's kidnapping conviction, 2) ordered the rape conviction merged into the first-degree felony murder conviction, and 3) affirmed the murder and handgun convictions. Gross v. State, No. 501, Sept. Term, 1995, 108 Md.App. 720 (filed 2/26/96). A Petition for a Writ of Certiorari was denied by the Court of Appeals. 343 Md. 333, 681 A.2d 68 (1996). On August 18, 1997, Gross filed a Petition for Post-Conviction Relief in the Circuit Court for Anne Arundel County. In that petition, he cited numerous actions by his attorney which allegedly constituted ineffective assistance of counsel at both the trial and appellate levels.1 A hearing was held on the petition and on June 7, 1999, the Circuit Court filed a 37-page Memorandum Opinion and Order granting Gross a new trial. In that Opinion, the hearing judge found:

1. that trial counsel was ineffective for failing to object to the use of DNA PCR testing;

2. that trial counsel was ineffective for failing to investigate, hire, and properly prepare a qualified competent expert in the field of DNA PCR testing;

3. that trial counsel was ineffective for failing to object to the introduction of DNA PCR evidence absent required population genetics statistics;

4. that the cumulative effect of trial counsel's errors denied Gross effective assistance of counsel;

5. that appellate counsel was ineffective for failing to appeal the trial court's ruling on the Motion to Suppress the DNA PCR evidence; and

6. that appellate counsel was ineffective for failing to raise on direct appeal the trial court's refusal to accept Dr. Walter Rowe as an expert in DNA PCR evidence.

The State challenges each of those six findings. We will, however, restructure the issue before us. The first three of those findings constitute, collectively, the basis for the Circuit Court's ruling that Gross was unconstitutionally denied the effective assistance of trial counsel. The so-called fourth "finding" is nothing more than a legal conclusion based on the cumulative effect of the preceding three actual findings. The correctness of that ruling as to the ineffectiveness of trial counsel is one of the two issues before us for decision.

The final two findings constitute, collectively, the basis for the Circuit Court's ruling that Gross was unconstitutionally denied the effective assistance of appellate counsel. The correctness of that ruling is the second issue before us for decision.

THE FACTUAL BACKGROUND
A. The Corpus Delicti

At approximately 6:45 A.M. on Sunday morning, December 19, 1993, a resident of Southern Anne Arundel County was returning to his home after having driven to the nearby town of Deale to pick up a Sunday paper and some doughnuts. In a rural cornfield near Leitch Road, he spotted what appeared to be a lifeless human body. After summoning help from a nearby farm, he confirmed that what he had spotted was the body of a human female. He called 911.

Although not identified for several days, the body was that of Margaret Ruth ("Peggy") Courson, a 26-year-old woman living in a boarding house near the City Dock in Annapolis, although her parents and her three-year-old child lived in Florida. She suffered from acute alcoholism and the autopsy revealed that her blood alcohol content was .34%. The blood alcohol content of the urine was .42%. When her body was found, she was nude from the waist up, her underpants were wrapped around one leg; she had on no shoes, no blouse, no bra, and no coat. She had, moreover, no purse nor any other indication of her identity. When a picture of her unidentified body ran in the local newspaper, a friend recognized it as "Margaret Courson." The cause of death was four gunshot wounds, all at close range, two to the neck and two to the chest. Subsequent investigation revealed that Peggy Courson had been denied entrance to her apartment house at approximately 2 A.M. by her landlady because of her drunken condition. As a bartender was leaving Armadillo's in the City Dock area after closing up at approximately 3:30 A.M., he encountered Peggy Courson, who appeared to be very confused and very drunk. When he last saw her, she was wandering off "aimlessly," in the direction of Middleton's Tavern. He was the last person, other than her murderer or murderers, known to have seen her alive. The cornfield where Peggy Courson's body was found three hours later was approximately twenty miles away from the City Dock area of downtown Annapolis.

Twenty-five days were to go by before the rest of Peggy Courson's clothing was found. On January 13, a south Anne Arundel County farmer discovered some suspicious items in a field between his house and his barn and immediately called police. At a spot in a field approximately fifty feet from Sudley Road, an Anne Arundel County officer discovered a pair of fur-lined black boots belonging to Peggy Courson. Near the boots was a black suede or cowhide purse. In the purse were, inter alia, a pair of white socks, a brassiere, and a blouse. The field in which these personal items were found was located approximately five miles from where Peggy Courson's body was found.

Thus far, the evidence described was offered to prove the corpus delicti of the crimes committed against Peggy Courson and was largely undisputed.

B. Investigative Focus

Initially there was nothing that pointed to any particular person as the criminal agent. Ultimately, there was abundant evidence to establish the criminal agency of Gross. To place that evidence of criminal agency in context, however, it will be helpful, as it was in the opinion of this Court resolving Gross's direct appeal, to go outside of the evidence offered on the merits of guilt or innocence and to look at the application for a series of search warrants sworn to by Detective Keith D. Williams and admitted at the pre-trial hearing.

In response to media releases on December 20, 1993, the day after Peggy Courson's body was found, the police received several telephone calls identifying Gross as the murderer. On December 31, they received another anonymous call stating that Sidney Scott, Jr. and two other black males were involved in the murder. On January 6 and 7, 1994, the police spoke to three persons, unidentified by the police in the warrant application. Two of those persons informed them that Gross had committed the murder with Sidney Scott present. The third of those informants implicated the appellant and two other named persons.

Based on information provided by Scott and by the unidentified informants, the police obtained search warrants for Gross's person, his car, and his residence, all of which were executed on January 10. Gross was also arrested and transported to the police station where, upon the advice of counsel, he refused to make a statement. Samples of Gross's blood, hair, and saliva were obtained and were submitted to the crime laboratory.

C. The Physical Evidence From Gross's Car

The evidence establishing Gross's criminal agency fell into five categories: three of them extremely strong, one of more marginal strength, and one of peripheral significance. Any of the three strong categories would have been enough, standing alone, to satisfy the State's burden of production. Whether the fourth category, standing alone, would have constituted a prima facie case is more problematic. The fifth category, standing alone, would clearly not have constituted legally sufficient evidence to take the case against Gross to the jury. The first extremely strong category of proof consisted of physical evidence found in the January 10 search of Gross's automobile. It unequivocally placed the victim, Peggy Courson, in Gross's car. Some of it, moreover, circumstantially placed her in Gross's car at a time close to her death.

Behind the back seat, between it and the hatchback area, was found a notebook. The handwriting in the notebook matched that of Peggy Courson. On nine separate pages of the notebook, moreover, were found Peggy Courson's fingerprints. An FBI hair and fiber expert testified that two of Peggy Courson's head hairs were found in the automobile. There was also in Gross's automobile one of Peggy Courson's pubic hairs. The notebook and the three hairs from the body of Peggy Courson were strong evidence that she had been in Gross's automobile, although they could not establish how recent that presence had been.

The FBI expert also testified, however, as to various carpet fibers from the floor mats of Gross's automobile and also as to fibers from a blanket found in Gross's automobile that...

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