State v. McGhee, 638-2020

CourtMaryland Court of Special Appeals
Writing for the CourtEYLER, JAMES R., J.
PartiesSTATE OF MARYLAND v. ANTONIO MCGHEE
Docket Number638-2020
Decision Date30 November 2021

STATE OF MARYLAND
v.

ANTONIO MCGHEE

No. 638-2020

Court of Special Appeals of Maryland

November 30, 2021


Circuit Court for Prince George's County Case No.: CT071096X

Friedman, Wells, Eyler, James R. (Senior Judge, Specially Assigned), JJ.

OPINION [*]

EYLER, JAMES R., J.

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Following a December 2007 trial in the Circuit Court for Prince George's County, a jury found Antonio McGhee, appellee, guilty of first-degree murder. On January 8, 2008, the court sentenced appellee to life imprisonment. Appellee appealed to this Court, which affirmed the judgments of the circuit court. McGhee v. State, No. 2827, Sept. Term 2007 (filed June 23, 2009).

Thereafter, appellee filed a petition for post-conviction relief under the Maryland Uniform Postconviction Procedure Act, seeking to vacate his convictions. In his petition, appellee alleged two instances in which he had been denied his right to effective assistance of trial counsel: first, in failing to object to what has become known as a "CSI effect" voir dire question asked during juror selection; and second, for failing to object to missing or incomplete jury instructions.

On June 11, 2020, the post-conviction court, after holding a hearing on the petition, filed a memorandum opinion and order finding both of appellee's claims meritorious and granting post-conviction relief in the form of a new trial. The State then sought leave to appeal from the post-conviction court's judgment in this Court, which we granted.[1] We then transferred the case to our regular appellate docket. State v. McGhee, CSA-ALA-0473-2020.

In this appeal, the State of Maryland, appellant, raises two issues, which we have

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rephrased:

1. Did the post-conviction court err in concluding that appellee was denied his right to effective assistance of trial counsel when his trial counsel failed to object when the trial court asked a "CSI-effect" voir dire question during jury selection
2. Did the post-conviction court err in concluding that appellee was denied his right to effective assistance of trial counsel when his trial counsel failed to object to missing or incomplete jury instructions

For the reasons set forth below, we answer these questions in the affirmative, and therefore, we shall reverse the judgment of the circuit court.

FACTUAL BACKGROUND

On the evening of March 17, 2007, Keith Dreher, the victim, was shot and killed by a single sawed-off shotgun blast to the head while standing outside of a pizzeria smoking a cigarette.

Jerrone Joyner (Jerrone[2]), who, at the time of the shooting was the assistant manager of the pizzeria, testified at trial that he was outside smoking a cigarette with the victim when he heard a "chit chit," which sounded to him like a gun. He looked up, saw what appeared to him to be a "sawed off," and heard someone say "empty your pockets." Jerrone testified that he then slowly walked back inside. Although he acknowledged that he described the shooter to the police as between five feet seven to five feet nine inches tall, wearing a black coat and blue jeans, dark skinned, with perhaps a goatee, he testified that he did not, and could not, identify him. He also testified that he did not remember telling the police that he saw appellee and the victim inside the pizzeria on the night of the

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shooting.

Detective Paul Dougherty testified at trial that he took a statement from Jerrone on the day of the shooting. In that statement, which Jerrone signed, Jerrone said that both the victim and appellee were in the restaurant for approximately 20 minutes prior to the shooting. In addition, the detective testified that Jerrone told him that, if the police could show him a photograph of the shooter, "he would guarantee" that he could identify him.

Demetrius Young (Young) testified that he went to the pizzeria on the night of the shooting to meet Shamell Joyner (Shamell) to go to a party. He said that he saw appellee, who he knew as "Dip," ask the victim for a cigarette, who said "he ain't had none." The victim then left the pizzeria and "Dip" followed him. About two minutes later, Young heard what he believed to be a gunshot.

Shamell was at work making pizzas at the time of the shooting. He testified that he saw appellee, who he also knew as "Dip," in the pizzeria that night. He heard an argument in the pizzeria and testified that a "gunshot went off[, w]e turned around, saw there was blood[, t]hat's all I know." Four days after the shooting, on March 21, 2007, Shamell accompanied Detective Michael Delaney to an elementary school and pointed out "Dip" to the detective.

Several other police officers responded to the elementary school at Detective Delaney's request for assistance in apprehending appellee. When two plain-clothes police officers with their badges around their necks identified themselves to appellee and his companion, and asked them to talk, appellee ran. The police officers radioed this information to Detective Delaney.

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Detective Wayne Martin overheard on the radio that appellee had fled and testified that he gave chase when he saw appellee running. He also said that he saw a gun protruding from appellee's clothing. When appellee was eventually apprehended and searched, there was no gun. The police searched the area and found a sawed-off shotgun on the ground in a wooded area behind the elementary school where appellee had been seen running. Detective Martin testified that the shotgun "appeared to be the same gun" that he had seen protruding from appellee's clothing.

Susan Lee, a firearms examiner, testified that the firearm recovered by the police, a bolt-action 20-gauge shotgun, was operable. The shotgun had two unspent shells in its magazine. She explained that she took apart the unspent shells to examine the shot pellets and wadding. In her opinion, the wadding and shot pellets recovered from the victim's head during an autopsy were consistent in their design and construction with the wadding and shot pellets she found inside the shotgun shells that she disassembled. Moreover, the wadding recovered from the autopsy was consistent with 20-gauge wadding. Because no fired shells were found at the scene of the shooting, the firearms examiner could not positively state that the shotgun recovered by police after they chased appellee was the one used in the shooting.

After appellee was arrested, the police photographed him and created a photographic array. A month after the shooting, on April 17, 2007, police detectives showed the photographic array to Jerrone who selected appellee's photograph and, according to Detective Andre Brooks, said "I'm a hundred percent that's the one who shot the victim." Detective Delaney said that, before selecting appellee's photograph, Jerrone

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asked "was that the guy," to which the Detective responded, "I couldn't tell you that. I wasn't there." Then Jerrone said "that's him[, t]hat's the guy that did it." At trial, Jerrone testified that he only selected appellee's photograph because appellee was the only person in the array that he did not recognize. He also testified that he never told the police that appellee was the shooter. In fact, Jerrone testified that he "never seen nobody shoot nobody."

Detective Delaney testified that, on April 5, 2007, he, along with another police detective, visited appellee in the detention center to execute a court ordered DNA search warrant on appellee. After Detective Delaney asked appellee whether he had an attorney, appellee responded that he believed that his family had retained an attorney, but he thought "they would be wasting their money because [the police] got the pump."[3] Detective Delaney testified that he believed that the "pump" was a reference to the sawed-off shotgun that the police recovered after the chase that resulted in appellee's arrest.

The State also presented evidence that the shotgun had been inspected for fingerprints and DNA. Mark Danus, a forensic analyst, testified at trial that there was not enough DNA on the shotgun to do a genetic profile, and Mertina Davis, a fingerprint specialist, testified at trial that the fingerprints recovered from the shotgun were not usable.

Dayontae Duncan (Duncan) testified for the defense that he knew appellee from the

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neighborhood and was with appellee on the night of the shooting. According to Duncan, he met appellee and several others at a party around 7:45 p.m. on March 17, 2007. The group remained at the party for approximately two and a half hours. Appellee then accompanied Duncan back to Duncan's house where the two went to bed. Duncan testified that appellee went to bed early because he had a toothache. On cross-examination, Duncan testified that his brother had called him the day after the shooting and reported that appellee had been "apprehended with a gun." He also testified that he was not asked to be an alibi witness until seven months after the shooting.

Appellee testified in his own defense that, on the evening of the shooting, he was playing basketball with friends when someone called one of his friends and told him about a party. The group then met Duncan at the party a little before 8 p.m. where they "chilled … for a little while, ate some food and then … left." Appellee testified that he went to Duncan's house after the party. Regarding his arrest a few days later, appellee testified that he did not have a gun on him when he ran from the police. In addition he said that he ran from the police "[b]ecause recently in the past times around the neighborhood, the police have been coming around our neighborhood harassing young dudes because of the colors we wear, and I had on blue that day[, ] I guess they think we are in gangs." On cross-examination, however, he testified that he ran from the police because he did not know who they were at first, did not see their badges hanging around their necks, and did not...

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