State v. Latham

• Decision Date: 29 October 2008
• Docket Number: No. 01724, September Term, 2006.,01724, September Term, 2006.
• Citation: 959 A.2d 90,182 Md. App. 597
• Parties: STATE of Maryland v. Kevin LATHAM.
• Court: Court of Special Appeals of Maryland

959 A.2d 90

182 Md. App. 597

STATE of Maryland v. Kevin LATHAM.

No. 01724, September Term, 2006.

Court of Special Appeals of Maryland.

October 29, 2008.

James E. Williams (Douglas F. Gansler, Atty. Gen., on brief), for Appellant.

Deborah S. Richardson (Nancy S. Forster, Public Defender, on brief), for Appellee.

Panel: DAVIS, CHARLES E. MOYLAN, JR., (Retired, Specially Assigned),^* ADKINS, SALLY D., JJ.

ADKINS, J.

On May 17, 1996, appellant Kevin Latham shot and killed 17 year old Harvis Coleman as he stood in front of his Baltimore City home. The State appeals a judgment granting Latham postconviction relief on the ground that he received ineffective assistance of counsel at his 1997 jury trial on murder and handgun charges. In the eight years between conviction and Latham's petition for postconviction relief, trial counsel became unavailable to testify due to his conviction and disbarment for perjury. On the basis of the trial record and Latham's postconviction testimony, the Circuit Court for Baltimore City ruled that defense counsel prejudicially failed to request any relief after a juror saw Latham in shackles outside the courtroom, to request jury instructions on perfect and imperfect self-defense, and to present mitigating evidence to explain why Latham was wearing a bullet-proof vest when he shot Coleman. The State raises the following three issues:

I. Did the post conviction court err in determining that Latham's counsel was ineffective for not asserting defenses of perfect and imperfect self-defense, when those defenses were incompatible with Latham's counsel's chosen trial strategy?

II. Did the post conviction court err in determining that Latham's counsel was ineffective for not requesting a remedy based on Latham's claim that a juror briefly saw Latham in shackles outside of the courthouse?

III. Did the post conviction court err in determining that Latham's counsel was ineffective for not introducing evidence of Latham's prior altercations in his neighborhoods to mitigate the State's unsuccessful premeditation argument?

After conducting our own independent constitutional appraisal of the trial and ineffective. Accordingly, we shall reverse the judgment awarding Latham a new trial.

FACTS AND LEGAL PROCEEDINGS

The Trial

Over a four day jury trial, the State established that at around 3:00 p.m. on May 17, 1996, Harvis Coleman was standing outside his home at 1932 West Lafayette Avenue in Baltimore, with his 10 year old brother Velmar Coleman¹ and his 13 year old cousin Michael Parker. Kevin Latham rode down the street on a bicycle, then stopped in the middle of the road in front of the Coleman residence. Velmar and Parker both testified that Latham, whom none of them had ever seen before, said "What's up," to which Harvis replied, "What's up." According to Velmar, Latham then pulled a gun from his back pocket and shot Harvis. Velmar testified that after Latham fired, Harvis shot at Latham, hitting him in the knee. Both Velmar and Parker agreed that Latham shot first. But according to Parker, Harvis pulled the gun from his "dip" in the front of his stomach before Latham fired.

Parker fled, but Harvis and Velmar retreated into their home, where Harvis fell on the floor. The bullet had passed through Harvis's upper arm and traveled into his chest, where it bisected his aorta and continued into his lungs. The medical examiner estimated that he died about one minute after the shooting.

Baltimore City Police Officer Joseph Bertrand heard two gunshots while he was patrolling nearby. He responded to the scene within ten seconds of the last shot, where he found Latham wounded and lying next to his bicycle in the middle of Lafayette Avenue. Latham was wearing a bullet-proof vest. A .380 cartridge casing lay about ten feet from him, but no matching weapon was ever found. According to Bertrand and other police officers who regularly patrolled that high crime neighborhood, a gun left on the street would "probably" have been taken by someone rather quickly.

Bertrand testified that he secured the crime scene, then learned that there was another shooting victim inside the Coleman residence. After finding a 9 millimeter cartridge casing on the sidewalk in front of the home, Bertrand entered the home. He found Harvis lying dead on the floor, between the front hall and the dining room, with a 9 millimeter semi-automatic handgun nearby on the dining room floor.

The defense theory advanced by trial counsel was that Latham did not shoot Harvis Coleman, but was caught in crossfire exchanged between Coleman and an unidentified shooter. This strategy required an explanation for why Latham's left hand had tested positive for gunpowder residue. The State's gunpowder residue expert acknowledged that "there is a possibility these residues were transferred from the firearm or from an object which was right near the muzzle of a firearm when it went off[,]" at a distance of two and a half feet to six inches. Although it was "really unlikely," a subject also could get gunshot residue on his hand if he "reached over to grab" the gun as it was being shot. But "[m]ost probably," he testified, Latham's "hands were immediately adjacent, right next to a discharging firearm or else his hands were used to fire a firearm within a few hours of 4:25 on May 17, 1996."

At the end of a second day of jury deliberations on July 22, Latham complained to the trial court that a juror had seen him "outside" when he was shackled and handcuffed for boarding into a correctional services vehicle. At the time, trial counsel was not present in the courtroom, because the trial court had permitted both attorneys to leave the courtroom during deliberations with the proviso that "you do have to be back within five minutes if there is a question or verdict, so govern yourselves accordingly." At 5:30 that afternoon, the court reconvened for the purpose of dismissing the jury for the evening, but trial counsel did not answer the court's summons. When Latham said that he wanted to wait for his lawyer, the court agreed to wait "a couple minutes to see if he gets here." After a short recess, the court talked to Latham at a bench conference:

The Court: Sir, you want to come up?

The Defendant: One of the jurors seen me.

The Court: Who saw you?

The Defendant: I don't know the name.

The Court: You think they saw you?

The Defendant: They seen me outside.

The Court: Outside there?

The Defendant: Outside. When I thought about it, I wanted to wait until they left.

The Court: We'll inquire about this later.

Trial counsel did not return to the courtroom. The court dismissed the jurors until the next morning, then asked his law clerk whether he had located Eaton.

The Court: Did you find Eaton? Where is he?

Law Clerk: He said he was still in his office.

The Court: Did you tell him to get here or would you like me to send a sheriff for him? I told him to get here. Did you tell him to come here? You mean you had him on the phone and you didn't tell me you had him on the phone?

Law Clerk: No, I didn't because you were releasing the jury.

The Court: Unbelievable. Get him here, Sir. I don't care what you do, but get him here. . . . As soon as you get him, tell him to get here immediately. He'll be here. . . .

(Whereupon, a recess ensued). . . .

Law Clerk: Judge, they're telling me that he left.

The Court: I can't believe it. Now what if you have a problem with the jurors, Jim? What are you going to suggest we do then?

Law Clerk: What's that, Judge?

The Court: The problem with this juror seeing him? Tell them to find him and send somebody over here immediately. You're unbelievable. . . .

The Court: Call his supervisor, whoever answered, tell him I'm outraged that he wasn't here. Tell him you made a great blunder and that I expect him and his supervisor here at 9:30 promptly. . . . And, Sir, then you can tell him there is a problem in that I have released the alternate and I could have done something before I released them.

The Defendant: Yes.

The Court: Now the problem is with what we do, okay? But we'll discuss that with your lawyer when he's here. . . . Which one was it? Do you remember where the Juror was sitting?

The Defendant: Juror 4. . . . The one that start from this side. . . .

The Court: So it was the middle aged lady number 4.

The Defendant: Yes. Light skinned.

The Court: Older lady.

The Defendant: Yes.

The Court: To you old, to me middle aged. But you see sir the problem is [that] I also want you to think about, we'll go over that with your lawyer and I'll repeat what I told you, often it is amazing how jurors will turn away almost like they don't want to see.

I haven't had a juror—the way I handle it if that happened during trial I would bring her up and I would say did you have occasion to stop anyone related to this trial outside of the courtroom since the trial began.

And it is amazing, I have never had one say yea. It's almost when they see somebody in chains, they'll look away. They don't look. I mean, but there is a first for everything, you know.

The Defendant: I guess coming out here five or 6 in the evening you're bound to look at anything especially in chains. That's why.

The Court: Um-hum. Well, there are some options. We'll see what you decide after you speak to your lawyer and we'll do that in open court. (Emphasis added.)

The trial court assured Latham that "we'll do that as soon as" trial counsel "checks in" and before the jurors resumed deliberations.

The next morning, defense counsel appeared and the matter was discussed. The trial court considered the options:

The Court: Because what I may do is if they are all here at 9:30, release them in deliberations, then put that problem, which was on the record and dealt with your client's allegation that Juror Number 4 saw him in shackles before the jury was released into deliberations. And I explained to him the difficulty I could have to replace with an...